Lords Sitting of 24 February 1986

Preamble
The House met at half-past two of the clock: The CHAIRMAN OF COMMITTEES On the Woolsack.
Prayers—Read by the Lord Bishop of Derby.

Road Safety: Driving Standards
Lord Brougham and Vaux: My Lords, I beg leave to ask the first Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what action they are taking to improve the driving standards of all road users in European Road Safety Year, and whether they will consider sending to all drivers a copy of the Highway Code through the Driver and Vehicle Licensing Centre to remind drivers of their responsibilities.
The Parliamentary Under-Secretary of State, Department of Transport (The Earl of Caithness): My Lords, we shall continue throughout European Road Safety Year and beyond to take every opportunity to remind road users of the need for better driving standards and behaviour. The Highway Code provides full information and is sent by the DVLC free of charge to all motorists at the start of their driving or riding career.
Lord Brougham and Vaux: My Lords, I thank my noble friend for that reply. Does he agree with me that many drivers seem to forget what the Highway Code is? Does he agree that during European Road Safety Year greater effort should be made to improve driving standards? In this respect will my noble friend consider sending a reminder, as announced by his noble friend last week, showing the Ten Commandments in this excellent handbook called Roadcraft?
The Earl of Caithness: My Lords, I agree with my noble friend that the publication Roadcraft, to which he has referred, is an excellent publication. It is the police driving manual and it is aimed at those who have good driving experience. The department publishes a book called Driving which is the definitive document and covers all stages of driving from the commencement.
Lord Underhill: My Lords, as this is European Road Safety Year and the Minister has said that every opportunity will be taken to impress upon motorists the importance of this matter, does he recall that last Tuesday the noble Baroness, Lady Macleod, asked a Question about driving in winter conditions? I asked a question about the use of television and radio. Is this not an excellent opportunity to use television and to make a series demonstrating to all motorists the proper way of driving?
The Earl of Caithness: My Lords, unfortunately, I was not here last Tuesday, but I have read the Question in the Official Report. Television is an excellent medium and although we can provide
816
information to the television channels, it is up to them whether they use it.
The Earl of Onslow: My Lords, is it not true that we as a generation are much better drivers than our fathers and our grandfathers? Is my noble friend aware that the number of people killed on the roads in the 1930s was more than are killed now? We should keep this matter well in proportion.
The Earl of Caithness: My Lords, I am grateful to my noble friend for his question. I confirm that since 1980 the accident rate has decreased.
Lord Tordoff: My Lords, is it not the case that the sort of complacency that has been exhibited by the noble Lord opposite is precisely why books such as Roadcraft should be drawn to the attention of experienced drivers? Is it not the case that it is experienced drivers who get into bad habits over a long period of years and need them corrected? A book such as Roadcraft would bring us all up short and realise that we often need to relearn our craft.
The Earl of Caithness: My Lords, I do not think that there is any complacency either from my noble friend or from myself. It is a statement of fact that accidents have decreased. I totally agree with the noble Lord that it is up to every individual to drive more safely. Any fool can drive badly enough to be dangerous.
Baroness Macleod of Borve: My Lords, may I ask my noble friend the Minister whether he knows how many people per year take and pass the advanced driving test? If that number proves to be few, will he encourage more motorists to take it?
The Earl of Caithness: I do not know the answer, my Lords; I shall write to my noble friend on it. Whether we can encourage people to take the advanced driving test, which is an excellent test, is something that the department can do in a limited way. It is up to the individual to be responsible and to take these things into his own hands.
Lord Paget of Northampton: My Lords, can the noble Earl tell us whether the new Highway Code includes any information about what "bus lane" means? The old one did not. Does "bus lane" mean anything more than "Careful chaps, you might meet a bus there"?
The Earl of Caithness: My Lords, I think the noble Lord's point is a little wide of the Question on the Order Paper. However, I shall write to him.
Lord Ardwick: My Lords, is the noble Earl aware that some parts of the Highway Code make no sense unless drivers are deterred from driving at 40, 50 and 60 miles an hour in cities?
The Earl of Caithness: My Lords, I hope that all drivers drive within the speed limits. I know, according to a recent survey that we have undertaken, that some do not do so. But I hope that discussions such as today's Question Time will serve to reinforce the point.
Lord Glenamara: My Lords, is the noble Earl aware that when the Institute of Advanced Motorists was formed—I believe I am one of the few founders left—there was a representative of the department on its executive committee? Can the noble Earl say whether there is a member of the department there now? If not, will he look at that?
The Earl of Caithness: I shall indeed look at it, my Lords.
Lord Edmund-Davies: My Lords, can the noble Earl tell us whether the information to be forwarded from the driving centre at Swansea will include the pamphlet which (to my consternation) informed me:
"Remember: on motorways there is no slow lane."?
If it will, can we be informed of the statutory basis of such a restriction?
The Earl of Caithness: My Lords, I shall have to look into that particular question.
Lord Leatherland: My Lords, when the Highway Code is circulated, can a note be added to it or with it warning motorists not to change gear very noisily when they have to pass somebody who is riding a horse?
The Earl of Caithness: My Lords, I think there is quite a lot of information concerning changing gear. I do not think it is in the Highway Code but in the department's driving manual to which I have referred.

Road Safety: Tyre Tread Depth
2.43 p.m.
Lord Brougham and Vaux: My Lords, I beg leave to ask the second Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether in the light of their support for European Road Safety Year they will introduce regulations to make the minimum tyre tread depth in the United Kingdom 1mm across the whole width of the tyre, which is the minimum prescribed standard in most EEC countries.
The Earl of Caithness: My Lords, the Department of Transport is conducting a review of the tyre regulations and tomorrow my honourable friend the Minister responsible for roads and traffic is meeting the various organisations concerned with this subject.
Lord Brougham and Vaux: My Lords, I am grateful to my noble friend for his Answer. I think I had better wait and see what his honourable friend has to say.
Lord Paget of Northampton: My Lords, since our safety record is so much better than that of our Continental friends, would it not be a better idea to suggest that they adjust their regulations to conform with ours?
The Earl of Caithness: My Lords, I can inform the House that there are not European regulations as such. Each individual country has different regulations. I think that, until there is harmonisation, there seems to be no demand in Europe for bringing their regulations to the standard of ours or ours to theirs.

The Arts: Business Sponsorship
2.44 p.m.
Baroness Elliot of Harwood: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how business sponsorship of the arts is being encouraged.
Lord Skelmersdale: My Lords, the Government's Business Sponsorship Incentive Scheme offers matching grants for new sponsorship. This has already brought £6·7 million of new money into the arts since it was set up in October 1984, including £5 million worth of new sponsorship from industry and commerce. In addition, my right honourable friend the Minister for the Arts takes every opportunity, as he visits different parts of the country, to publicise the benefits of arts sponsorship to both parties.
The Association for Business Sponsorship of the Arts works full time promoting business sponsorship nationwide.
Baroness Elliot of Harwood: My Lords, I should like to congratulate the Government very much on this policy. It seems to be working extremely well. I wonder whether the Minister can say whether it covers Scotland and Wales, and what other ideas the Government have for spreading it out so as to get more money from business.
Lord Skelmersdale: Yes, my Lords. I can tell my noble friend that to the best of my knowledge and belief this is a countrywide scheme. In regard to new ideas, we are continually keeping the system under review. The Government have already done all kinds of things on the tax front to make it more sensible for businesses and individuals to give money to all charities, not only to the arts, and to make that more likely.
Baroness Birk: My Lords, is it not the case that, while providing means to encourage business sponsorship, which the Minister has mentioned, the Government's own inadequate arts subsidy discourages a climate of comprehensive support for the arts? Without larger sums from the public sector being made available, the arts will continue to retain their low priority and remain susceptible to the whims of patronage instead of developing their huge revenue earnings and employment potential, which they are unable to do at the moment.
Lord Skelmersdale: My Lords, I think I disagree with the noble Baroness. The public subsidy for the arts is extremely generous as a basic level and the

819
Government's intention, through the business sponsorship schemes, has been to top this up. The arts as a whole are benefiting very greatly from this.
Lord Boyd-Carpenter: My Lords, does my noble friend's use of the expression "already" in connection with tax treatment of this matter give reasonable grounds for hope for 18th March?
Lord Skelmersdale: My Lords, I too have read recent speculation in the press. I do not think it would be right for me to comment on it beyond saying that my right honourable friend receives all kinds of advice, good, bad and plain lunatic, in forming his Budget. I myself have even been known to contribute.
Lord Avebury: My Lords, does not the emphasis on business sponsorship mean, in the case of music, that popular music, or music which appeals to the largest number of people, will tend to be played ad nauseam, whereas music which appeals to smaller numbers will tend to be neglected? Will the noble Lord ask the Arts Council whether it finds that, with the gradual shift of emphasis towards business sponsorship, the minority interests in music are tending to be neglected?
Lord Skelmersdale: My Lords, perhaps I may say, as a regular visitor to Glyndebourne, which to the best of my knowledge and belief is entirely subsidised by private finance and has no government money at all, that on many occasions they produce opera which I think would not otherwise see the light of day. Thus I do not see that the minority interest is always being neglected.
Lord Nugent of Guildford: My Lords, is my noble friend aware that, although this is a very attractive scheme in principle, in practice it is extremely difficult to get if off the ground? Is he aware that in my local town of Guildford, which is not unprosperous, we have had no response whatsoever? My noble friend Lord Bessborough, who also is president of his theatre in Chichester, has been successful but in only a very limited way. Can we do something to advise theatres such as ours, which now have no help from the Arts Council, what technique should be followed to attract local business sponsorship so that we might have the benefit of this scheme? At present we try and try but have no result.
Lord Skelmersdale: My Lords, yes. I should advise my noble friend and others in his position to get in touch with the Association for Business Sponsorship of the Arts, which has three full-time regional people—I was going to call them "salesmen" but "directors" might be a more appropriate term—who have been very successful in the past year and who I have no doubt would like to help my noble friend.
Lord Hutchinson of Lullington: My Lords, would the Minister agree that, unlike Glyndebourne, most of the clients of the Arts Council are of no interest whatever to rich corporations or rich individuals for the purpose of advertising or of status, and that that applies particularly to those enterprises which at the moment are struggling for survival after April 1st? Can
820
the Minister tell the House how much private money he has managed to raise for the Empire, Sunderland, for the Theatre Royal at Liverpool, for the Philharmonic Hall at Liverpool or, indeed, for Sadler's Wells?
Lord Skelmersdale: No, my Lords, not without notice; and certainly not at Question Time can I go into detailed answers on such an exhaustive list as the noble Lord, Lord Hutchinson, has just produced. However, what I will say as far as successor bodies and abolition are concerned is that they have been given 100 per cent. of the rate support grant that the senior bodies would have had in the coming year, and therefore the fact that the money was spent in the past is no reason to suppose that it will not be spent in the future.
Baroness Birk: My Lords, on that point, is the Minister not aware that the Arts Council's estimate was for £35 million to make up for the effects of abolition and that, in fact, they have got £25 million; so that, for starters, they are £10 million short?
Lord Skelmersdale: My Lords, I am well aware of the Arts Council's estimate—in fact, we had a mini-debate on it not very long ago—and I am well aware of the provision my right honourable friend has made. But this, of course, is extra to the 100 per cent. rate support grant figure that I mentioned just now to the noble Lord, Lord Hutchinson.
Lord Paget of Northampton: My Lords, does the noble Lord not agree that the Government should say a word of thanks to our noble friend Lord Boardman, who has provided us with that wonderful Reynolds Exhibition at the Royal Academy?
Lord Skelmersdale: Yes, my Lords, I most certainly agree with the noble Lord. I welcome all sponsorship wherever it occurs and from whomsoever it comes.

Official Secrets Legislation: Prosecution
2.52 p.m.
Lord Molloy: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what authorisations are required to protect civil servants from prosecution under Section 2 of the Official Secrets Act 1911 in the event of publication by them in whole or in part of classified documents to unauthorised persons.
The Lord Advocate (Lord Cameron of Lochbroom): My Lords, the relevant offence under Section 2 of the 1911 Act consists of the communication by a person who posseses information or a document by virtue of his official position to a person to whom he is not authorised to communicate it. If he is so authorised, no question of protecting him from prosecution arises: he has committed no offence. What constitutes authorisation in any particular case depends on the circumstances of that case.
Lord Molloy: My Lords, is the noble and learned Lord aware that that Answer confuses the issue more than ever, and that it is now totally perplexing? Is the noble and learned Lord further aware that, because this matter was brought to the forefront in the Westland issue, masses of ordinary people up and down the country, including lawyers and skilled parliamentarians, cannot understand why it is possible for someone to leak a letter from the Solicitor-General without him knowing it and be given a private assurance by another Minister that if they committed this act, which seems to be an offence, they would be covered for it? Would he not agree that this is disturbing right through the ranks of Parliament and the country in general?
Lord Cameron of Lochbroom: My Lords, I would not accept the suggestion which is made by the noble Lord. The section is quite clear, and I have given an explanation about it. So far as the question of immunity is concerned, my right honourable and learned friend the Attorney-General made quite clear what the position was about that, and, indeed, my right honourable friend the Prime Minister made the matter even clearer in her Statement of 23rd January in another place. I should have thought that that would have been quite sufficient to allay any such fears as those suggested by the noble Lord just now.
Lord Cledwyn of Penrhos: My Lords, in the debate on the Official Secrets Act last March the noble Lord, Lord Elton, said—and I think I quote his words accurately—that Section 2 is imperfect. In view of that and of the general public concern about this section of the Act, can the noble and learned Lord say what the Government have done in the meantime to introduce an amendment or new legislation to deal with a matter which is of acute public concern?
Lord Cameron of Lochbroom: My Lords, I think that what the noble Lord opposite has said was a matter of concern which was placed before Parliament in the Session of 1979–80. The difficulty has always been to find another broadly acceptable measure which defines the information which genuinely needs protection from disclosure. Indeed, my right honourable friend the Prime Minister, when questioned about this matter on 14th January in another place, made clear that an attempt had been made to amend the Act. There had been considerable debate on the matter, and although many people wanted change there was no agreement on what those changes should be.
Lord Molloy: My Lords, is the noble and learned Lord saying that it is not possible whatsoever to tell a Cabinet Minister or any other Minister about shielding civil servants who wish, at his or her desire, to leak information to the public press? Does that also apply under the Official Secrets Act to a highly sensitive defensive issue which could be of use to a foreign power—that, provided that civil servant is guarded by a Minister, all will be well and there is nothing to worry about? That is what the general public are asking.
Lord Cameron of Lochbroom: My Lords, I do not think that the general public are asking that question.
822
So far as concerns the issue which the noble Lord raised earlier, my noble friend the Leader of the House made quite clear to your Lordships in a Statement which was being delivered in another place by the Prime Minister that the Attorney-General had authorised the Prime Minister to say that, after consultation with and the full agreement of the Director of Public Prosecutions and senior Treasury counsel, he had decided that there was no justification for the institution of proceedings under the Official Secrets Act in respect of any of the persons concerned in the matter.
Lord Hutchinson of Lullington: My Lords, would the noble and learned Lord tell the House whether in this Administration press secretaries who are journalists have the power to authorise breaches of the Official Secrets Act? In the Westland matter, the civil servants in the DTI told Sir Robert Armstrong that they sought, and thought that they had, the authority of the Prime Minister's press secretary to breach the Official Secrets Act. If they do have this power, will he tell the House where it comes from and' how it can be reconciled with the constitutional principle of ministerial accountability?
Lord Cameron of Lochbroom: My Lords, with due respect, that seems to be going beyond the scope of this particular Question. I merely say that my right honourable and learned friend the Attorney-General said in another place on 3rd February in relation to the issue of prosecution of Mr. Bernard Ingham that, after consultation with the Director of Public Prosecutions and senior Treasury counsel, he took the view that his published guidelines would not be fulfilled by any prosecution.
Lord Hatch of Lusby: My Lords, can the noble and learned Lord explain more fully to the House and clarify his use of the word "authorisation"? Is he saying that a Minister may order his civil servants to break the law and that in that case neither the civil servants nor the Minister have breached Section 2 of the Official Secrets Act? What is the force of this word "authorisation"? Is it authorisation to break the law; and, if so, is it not the Minister who should be prosecuted under the Official Secrets Act?
Lord Cameron of Lochbroom: My Lords, I make it quite clear—and I thought that I had done so in the opening response which I made to the Question—that what constitutes authorisation in any particular case depends upon the circumstances of that case. I cannot go beyond that matter. That is a matter which any lawyer would fully understand.

Business
Lord Denham: My Lords, at a convenient moment after 3.30 this afternoon my noble friend Lord Lucas of Chilworth will, with the leave of the House, repeat in the form of a Statement an Answer which is to be given in another place to a Private Notice Question on the sale of VSEL/Cammell Laird Group. This will be followed by my noble friend Lady Trumpington who,

823
again with the leave of the House, will repeat a Statement on Social Security Benefits (Up-rating).
My Lords, it may be for the convenience of the House if I announce that the Committee stage of the Local Government Bill will be adjourned at approximately 7 p.m. for approximately one hour, and that during this adjournment the Report stages of the Incest and Related Offences (Scotland) Bill and the Marriage Bill will be taken.

Blyth Harbour Bill [H.L.]
3 p.m.
Read a second time, and committed to a Select Committee.

Bournemouth-Swanage Motor Road and Ferry Bill [H.L.]
Read a second time, and referred to the Examiners.
Brighton Marine Palace and Pier Bill [H.L.]
Read a second time, and referred to the Examiners.

Outer Space Bill [H.L.]
Lord Brabazon of Tara: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, on behalf of my noble friend Lord Lucas of Chilworth, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Lord Brabazon of Tara.)
On Question, Motion agreed to.

Local Government Bill
3.2 p.m.
The Minister of State, Department of the Environment (Lord Elton): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Elton.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 4 [Codes or recommended practice as regards publicity]:
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 16:
Page 3, line 25, at end insert ("for the guidance of local authorities in determining whether to incur expenditure on publicity.").
The noble Lord said: I beg to move Amendment No. 16, which is to insert at the end of Clause 4(1) the
824
words which appear on the Marshalled List. This amendment is grouped with Amendment No. 17, which is an alternative to No. 16, and also with Amendment No. 19. This set of amendments, to which by leave I would wish to speak, is designed to ensure that the codes issued by the Secretary of State under Clause 4 shall be advisory only, being for the guidance of the local authority, and this only for the purpose of determining whether to incur expenditure on publicity—a purpose which Amendment No. 16 has subsumed from part of Clause 4(6). If the purpose is intended by the Government to be wider than is stated in Clause 4(6), then Amendment No. 17 serves as an alternative to Amendment No. 16; but if I interpret correctly certain correspondence which I have only just received, it would appear that Amendment No. 17 may not arise.
Amendment No. 19, which is common to both alternatives, proposes the excision of "shall have regard to" from Clause 4(6) as otiose. The intervening amendments which relate to Clause 4—that is, Nos. 17A, 17B, 18A and 19A—do not in any way affect the substance of this set of grouped amendments and these amendments are in no way governed by the intervening amendments.
These grouped amendments, which are concerned with status of the codes, as distinct from content, bring the drafting of Clause 4, which has to be construed as a whole, into line with the intention expressed by my noble friend the Minister on Second Reading. The Official Report is not admissible as an aid to construction in any court of law and so it is essential to the revisory role that the status of any code (whatever that status may be) should be plain on the words of the clause in the Bill which authorise the introduction of the code. In this Bill, which is overtly interventionist, it is of singular importance that the purely advisory status of these codes should be established. That is, if indeed codes of practice are needed at all, a question which only arises on the Question whether Clause 4 shall stand part of the Bill.
On the assumption that codes are requisite—an assumption made for the purpose of the amendments to which I speak—these codes to be issued by the Secretary of State under Clause 4 are advisory codes of guidance as to recommended practice for the local authority. The functions affected by these recommendations lie within the realm where the local authority are the sole judges of fact and of the manner in which they exercise their discretion. Such indeed is the judicial approach, according to the reasoning of three decisions of the Appellate Committee of your Lordships' House in 1985 and 1986, unfortunately which followed the vintage era of the noble and learned Lord, Lord Denning, and the last of which was Puhlhofer v. London Borough of Hillingdon. That decision was handed down on 6th February.
From the reasoning of all these decisions, it is all too plain that the words "shall have regard to" in Clause 4(6) have no legal effect whatever and afford no legal sanction if the recommendations in the code are not followed by the local authority—this is because resort to judicial review may not be had to challenge or monitor such functions of the local authority as are affected by the codes, save in the wholly rare and exceptional case in which, as I mentioned on Second

825
Reading, the retention of Clause 4(6) is wholly irrelevant.
The rare and exceptional cases—where no reasonable authority mindful of its duties could have made the decision, which in fact verges upon the point of absurdity, bad faith, abuse of power and error of law—arise under the inherent jurisdiction of the court as interpreted by case law decisions and regulated by the rules of court and as a matter of public administrative law. That is a jurisdiction which is in no way affected by the inclusion or excision of Clause 4(6). In such proceedings, the extent to which the codes afford assistance to the point at issue (beyond that afforded by the Act itself) the codes are admissible for what they are worth.
Therefore if the enjoinder to the local authority in Clause 4(6) to have regard to the code lacks legal efficacy and if breach of such is not justiciable, and if the intention is that the status should be advisory, then why dress up words of mere exhortation in the garb of mumbo-jumbo mandatory statutory duty, which gives a semblance of legal efficacy but affords none?
If breach of the code is not to afford some extrajudicial sanction available to central Government, such as withholding rate support—and I understand from the recent correspondence I have just received that such assuredly is not the intention of the Government—then it is not understood what conceivable purpose the words "shall have regard to" in Clause 4(6) are intended to serve.
The intention of my noble friend the Minister, which this set of amendments is designed to reflect, was stated on Second Reading at col. 1018 of the Official Report and may be restated, I hope accurately, as follows. First, these codes will contain recommendations affecting political and other publicity, and will be drafted in consultation with the local authorities as to the matter of content, with which we are not concerned today. Secondly, as to status, they are for the guidance of the local authority and not for the court. Thirdly—
Lord Elton: Will my noble friend forgive me for intervening? I may have misheard him, but he appeared to be starting to read something recorded at col. 1018 of the Official Report of the Second Reading debate. I am not sure whether he is reading words in that column or that I have uttered. Can he just tell me what the quotation is?
Lord Campbell of Alloway: I have to take up the time of the Committee. It may be col. 1078 because I transposed my notes. It is where my noble friend was dealing, in his opening speech, with the intention of the codes of practice.
Lord Elton: I am most grateful to my noble friend. My point was that col. 1018, if my noble friend will permit me to say so, was the heart of my own speech and I did not recognise the words he was uttering. But if he attributes them to somebody else, I have no objection.
Lord Campbell of Alloway: These are the intentions of my noble friend the Minister from his own speech.
826
If my noble friend looks at Hansard, he will see that I used the words as I understood them, and as I restated them. The restatement, certainly in the first part, deals with his information that the codes will contain recommendations affecting both political and other publicity. Secondly, in that context he said that they would be drafted in consultation with the local authority. Then as to status, which is the second point, he said that they were for the guidance of the local authority; and, as I understand that and restate it, they are not for the guidance of the court.
Thirdly, he said in terms—I hope my notes are correct—that they have no statutory force, which, restated, means that failure to observe the codes is not justiciable. Lastly, my noble friend the Minister said that they may not be taken into account in Clause 2 proceedings to enhance the words of Clause 2, and will therefore not, as I restate the proposition, be admissible in Clause 2 proceedings.
The words "shall have regard to" in Clause 4(6), which Amendment No. 19 seeks to excise, are not at all apt when used in context with a purely advisory code. They are, however, appropriate for a legally binding purpose, such as defining the scope of the prohibition in Clause 2. In this context, Amendment No. 6 cast a spotlight upon the curious and inexplicable drafting distinction between "particular regard shall be had" in Clause 2(2)(a) and "regard shall be had" in Clause 2(2)(b). So now in the statute we have three expressions: "shall have regard to", "particular regard shall be had" and "regard shall be had".
The use of any of the three versions, which in plain English have much the same meaning, in one and the same short Bill, but dependent wholly upon contextual distinction either to import or to negate statutory effect—because with the codes of practice there is no statutory effect; with the Clause 2 prohibition there is statutory effect—to achieve both purposes, introduces a woeful want of clarity. It is of importance to avoid any semblance of confusion from cross-pollination in this regard, and the excision of Clause 4(6) would also serve this end.
3.15 p.m.
Although it is of importance to know whether such codes are for the guidance of local authorities, as your Lordships will see from Clause 4(1), as to content, style, distribution and other related but unspecified matters, or only for the guidance of the local authority in a determination to incur expenditure on publicity, it is also important to know because thereby hangs the alternative between Amendment No. 16 and Amendment No. 17. But again, if I interpret aright the letter which I have just received, Amendment No. 16 which I am moving is the appropriate amendment.
The hope is that my noble friend will accept either Amendment No. 16 or Amendment No. 17, having clarified his position and that, in any event, he will accept Amendment No. 19 and excise Clause 4(6) when moved in due course. On the basis that Amendment No. 16, in so far as it subsumes part of Clause 4(6), reflects the intention of the Government that the codes should only afford guidance to the local authority in a determination to incur expenditure on publicity, as I understand the recent correspondence, I beg to move.
Lord Elton: Before my noble friend sits down, I wonder whether he could help me. He has quoted an extremely recent case which I have just identified, Puhlhofer v. London Borough of Hillingdon, of which I have The Times report here. On a quick glance, the judgment does not seem to say what the noble Lord has led me to suppose it would say. Therefore I want to make sure that I have the right case, because it does not say anything at all about the status of the code. The warnings given are against using judicial review to challenge the merits of a local authority's decision, and I understand that the judgments stress that judicial review is not about the merits, but is about whether the decision has been taken properly. If my noble friend can tell me that I have got that right, it may make things easier later on.
Lord Campbell of Alloway: I am grateful to my noble friend. He has the case right. I have the transcript from the Judicial Office. I do not know what my noble friend has found in The Times report. The official judgment, on page 9, of the noble and learned Lord, Lord Brightman, and the express affirmation by the noble and learned Lord, Lord Roskill, on page 1, wholly support the reasoning which I have put before your Lordships, wholly support the concept that in a situation such as this the functions of a local authority are not open to monitoring or challenge by way of judicial review, because they lie within the realm of fact and discretion, which is for the local authority, and that it is only in the wholly exceptional case that judicial review could operate. Indeed, in those circumstances, according to the reasoning of this judgment, read in context with the reasoning of the judgment in the Nottinghamshire County Council case—I do not want to turn the Committee into a tutorial—and the case of In re W v. Hertfordshire County Council (the three decisions which took place in 1985 and 1986) I am relieved to see the noble and learned Lord, Lord Denning, in his place because he more than anyone could convince your Lordships, or otherwise, if it were right, that my proposition as to the legal situation is correct.
Lord Underhill: Before the noble Lord sits down, may I ask him to enlighten the Committee as to what is the letter, to which he has twice referred, which he received this morning?
Lord Campbell of Alloway: The letter which I received as I sat in my place—a letter of 21st February—is a private letter from my noble friend to myself. I do not wish to have to read out a private letter.
Lord Elton: By leave of the Committee, I should say that there is nothing I wish the noble Lord to conceal from the Committee. The letter was private only in the sense that it was an answer to a letter which I had received the night before on a point about this debate. This is not a tutorial on the procedures of the Committee or upon the state of the law. I merely wanted to say that there is nothing, as it were, clandestine about the letter. The point on which I intervened earlier was to establish the relevance of the judgment about which I still have doubts, but I shall return to
828
those matters when I properly make my own speech in my own time.
Lord Henderson of Brompton: I should like to support the noble Lord, Lord Campbell of Alloway, in everything that he has said. He has been most thorough and extensive in what he has had to say and I can therefore be relatively brief. I should like to start by referring to subsection (6) (because that is the most important subsection) which is the subject of Amendment No. 19. As the noble Lord, Lord Campbell of Alloway, has said, Amendment No. 16 is by way of being consequential to Amendment No. 19.
As I see it, subsection (6) is without any legal effect, as the noble Lord, Lord Campbell of Alloway, said, and as the noble and learned Lord, Lord Denning, said on Second Reading. But I regard it as not merely having no legal effect, not merely as being "otiose"—the word used by the noble Lord, Lord Campbell—but as being positively misleading. It is misleading to the common reader because it gives the impression that it does have some force. The uninstructed, ordinary citizen or Member of either House of Parliament is likely to think that the imperative words used, "shall have regard", must be enforceable or justiciable, as otherwise they would not have been included in the Bill. "Goodness", the uninstructed reader is likely to say, "the local authorities will have to watch out. They will have to watch their step. This is a tough measure. If they don't jolly well 'have regard' as they are told to, they can be forced to do so by one means or another".
We have heard from the noble Lord the Minister that the Government are not proposing to bring force majeure to bear on the local authorities by means of the rate support grant. We have heard from the noble and learned Lord, Lord Denning, and from the noble Lord, Lord Campbell of Alloway, that these words have no force. Why, I therefore ask, are they in the Bill? Should they not, as these amendments propose, be deleted? I cannot remember the adjective used by the noble Lord, Lord Campbell of Alloway. I think he said that they were mere "mumbo-jumbo". The word that I was going to use, and I am inclined to use it, is mere "flummery". They are either one or the other, or both.
If they are removed, Amendment No. 16 is required. This is purely consequential, and we shall then know that the codes are,
"for the guidance of local authorities in determining"
—then we go on with the words of the amendment. That is calling a spade a spade. It is telling the truth. I do not think that Clause 6 is telling the truth. It is positively misleading. If the codes of practice have no force I myself have no objection to this clause; but if they are to have the force of law, I think it would be only right for drafts of the codes of practice to be made available to Parliament before we proceed to any further stage of the Bill.
I shall refer only very briefly to the very interesting debate that we had on codes of practice initiated by the noble Lord, Lord Campbell, and to the reply given to that debate by the noble and learned Lord the Lord Advocate. He rightly said that no problem arises with non-statutory codes, but where they have a statutory

829
basis, as in this case, it really is necessary for Parliament to know clearly what is to be enacted and what legislative effect it will have. I do not want to be mistaken; I am not in the least against codes of practice as such—far from it, I am very much in favour of them. It has been a welcome development over the past 10 years or so in the interests of not cluttering up the statute book with detail and in the interests of providing flexibility. They can be altered and revised, whereas it is very difficult to alter the parent statute.
My objection is to this type of clause. It has been misleadingly called a trigger clause, but it triggers nothing. You pull the trigger and there is no bang. I am quite happy if the purpose of the clause is merely to give a statutory basis to what the Government call good practice in the relevant area and if, to use the words of the noble and learned Lord, Lord Cameron of Lochbroom, the code is nothing more than what it appears to be. If these amendments are passed, that is the effect of them. For that reason alone, I beg to support what the noble Lord, Lord Campbell of Alloway, has said.
I was going to refer to the case of Puhlhofer, but as it has been so extensively quoted I think there is no reason for me to do so. But it is very recent authority—6th February—and if we have been so sternly enjoined by two noble and learned Lords sitting judicially that it is in the highest degree undesirable for local authorities to be taken to court except where they have been acting perversely, I think one could say that to all intents and purposes subsection (6) of this clause as drafted is of no effect and should be deleted.
3.30 p.m.
Lord Ardwick: On the question of codes, we have made some progress. The rather ridiculous draft code published with the Bill has been withdrawn, but I should prefer, as would the National Union of Journalists, which is my own union, and the local authority associations, to have no statutory code at all, but self-regulation. Only the Government, for unclear reasons, persist with a code backed by a statute. If there is to be a code, however, it is essential that its status is clear to all and not merely to the Government Front Bench. I shall be moving Amendment No. 17, which would simply add
"for the guidance of local authorities"
to the clause that empowers the Minister to issue codes of recommended practice.
As the noble Lord, Lord Campbell of Alloway, has argued, with a learned skill that I cannot emulate, the object is simply to clarify the status of the codes. The fact that the codes are created under the authority of an Act of Parliament may seem to confer a legal status upon them that they do not possess. It seems that they would impose no legal obligation upon local authorities; they are simply advisory. Why not say so?
Can it be that the Government are hoping to intimidate or to bamboozle local authorities? Can it be that the Government are hoping that timorous local authorities will consider themselves bound by the letter of the code rather than by its spirit? Can it be that the Government hope that the defence of a local authority would be a weakened by its failure to observe
830
the letter of some clause in the code? If not, why not accept one of the two amendments that clairify the Bill?
For a similar set of reasons, I support the noble Lord, Lord Cambell of Alloway, in his proposal to delete subsection (6). If the proposal is accepted then I shall support his Amendment No. 16, which neatly brings guidance and expenditure together.
Lord Kilmarnock: From these Benches, we should be happy with either of the two amendments. The council's duty to inform the public on local government issues is threatened by the whole of Clause 4. Ideally, we should prefer to see the clause removed altogether. However, the Committee has before it two proposals that go a long way to solving our difficulties.
The draft code that was published and placed in the Library in December 1985 has now been withdrawn after the strong criticism it drew from the many interests involved, especially the officers of the local authorities, who would have been required to carry it out. In that connection, it is worth quoting what the chief executives had to say:
"The overlaying of a code of practice by the Secretary of State, as provided for in Clause 4, will produce a state of confusion for those who have to interpret the legislation. It would lead to the provision of two sets of rules (neither of them easy to interpret), one in statute and one in a code of practice of uncertain status".
That uncertain status has already been brought out by the speeches of the noble Lords, Lord Campbell of Alloway and Lord Henderson of Brompton.
Despite the criticism of the original code, it appears that the Government are still intent on going down the road of a statutory code. However, as I pointed out to the House on Second Reading, that really does not seem equitable. In the Financial Services Bill now passing through Parliament, the Government have insisted upon self-regulation of the financial services industries depite recent and flagrant abuses in the City. Yet for local elected authorities the Government reject self-regulation. We must remember that although some authorities have been guilty of abuse—and the number hazarded at is only some 12, 13, 15 or 20—there are something like 400 local authorities in this country that have performed their functions with perfect propriety. Those are the local authorities at which the code would bite.
I mentioned also on Second Reading the code of practice of the Institute of Public Relations, which states:
"In promoting their interests or policies in politically contentious issues, local authorities should not collaborate or jointly organise activities with party political organisations or with organisations specifically committed to the support of one political party".
That goes a long way against the politicisation of local government.
The noble Lord, Lord Campbell, performed a valuable service in moving his amendment and in pointing out that the code is an advisory code that is not or should not be intended to be considered by the courts. The role of the courts is now fully taken care of in Clause 2 as amended by the Committee. If we are to have a code at all, then it should be an advisory code for local authorities to follow. It should not be relevant at all to the consideration by judges of Clause 2, which is the clause of the Bill that concerns them.

831
On those grounds, we would accept either of the amendments. Before the noble Lords, Lord Campbell and Lord Ardwick, decide which amendment they are going to rally round, it occurs to me that Amendment No. 17 would require the backup of Amendment No. 19; otherwise it would be incomplete. It is therefore possible that the Committee might feel that it would be preferable to accept the two amendments put forward by the noble Lord, Lord Campbell of Alloway.
Lord Leatherland: I have a question to ask. I should first like to explain that at present I have no direct contact with any form of local government, although in the past I was chairman of one of the largest county councils in the country and also chairman of its finance committee. My question is this: if a council contravenes the suggested code of practice, will the district auditor be able to surcharge the councillors concerned?
Lord Denning: This amendment raises the whole question of the status of codes of practice in our law. We had a discussion about this matter a few weeks ago. At that time the opinion was expressed in this Chamber by the noble Viscount, Lord Colville of Culross, that if Parliament is going to produce codes of practice then it must at the same time apply its mind to stating in what terms is to be the effect of a code when it is prepared. In other words, when Parliament approves a code of practice it should at the same time state what the code's legal effect is to be, if and when that code goes before the courts of law.
In some codes, such as the Highway Code, the statute says that the code is to be taken into account by the courts. In the case of the Highway Code, that is the case. If one is considering whether or not a man has been negligent, then one examines the Highway Code. If he has not obeyed that code then it is some evidence of negligence on his part. In that way the code is taken into account in law and is admissible in evidence.
The same is true in the case of the industrial relations code—a copy of which I have in my hand. If the court or the tribunal is considering whether a man has been fairly or unfairly dismissed, it may examine the code to establish whether or not he ought to be given reasons on his dismissal or whether it can be challenged. In other words, the code is taken into account in disputes of that kind. In the latest code, under the Police and Criminal Evidence Act, it is taken into account in this way because the statute says so. If the police officer is charged with a disciplinary offence and has disobeyed the code he can be punished, or whatever, by the authority. Furthermore, let us suppose a civilian is claiming that a policeman has wrongfully searched or arrested him. In such a case, the code can be referred to in order to ascertain whether his action was or was not right. Those are perfectly understandable provisions. One can see what is the legal effect of the code.
However, in this Bill we have a different code. It is not between private individuals, such as I have been saying, but where a local authority is to issue publicity and there is a code of practice to govern it. If it is to come within the law, in what way will it do so? At Second Reading I suggested—and I still think it may
832
be right—that the courts could inquire to see whether, in this case subsection (6) has been fulfilled or not. It reads:
"Local authorities shall have regard to the provisions of the codes in force under this section in determining whether to incur expenditure on publicity".
But it seems to me that that provision would be ineffective. It does not say how much regard the local authority must have—whether it is to have much or little regard—and it would be very difficult to challenge the local authorities on that point, especially in regard to recent decisions. I might have done it when I was in the Court of Appeal but, on the other hand, there are three recent decisions of the House of Lords which say quite distinctly that the courts ought not to interfere with what local authorities do, in their discretion, or in the conduct of affairs entrusted to them unless they have gone beyond their powers. Therefore the question is: could it ever be said to the court that these local authorities have gone beyond their powers? It could not, I think, by invoking subsection (6).
An outline of a code of practice was issued for consideration in another place. It was pointed out in that outline code of practice that the publicity which comes within this clause covers not only paid publicity, paid advertising in the press, on radio and television, with leaflets and campaigns and so on, but also unpaid publicity including council and committee reports, consultation documents, press releases, press conference statements, media interviews and the like. All this comes within the code of practice and the wording of it is so wide that it does not seem to me to be fit for consideration by courts of law.
For example, "relevant matters" are the content, tone and presentation; the treatment should be objective; it should not be over-simplified or personalised; it must not directly attack policies and opinions of other political parties or groups. I wonder how our little district council at Basingstoke would get on, because it has passed a resolution unanimously condemning the Sunday trading Bill. Is it guilty of political propaganda? I am afraid that if this code of practice goes out we shall find freedom of debate and freedom of speech unduly circumscribed, not by law but by a code of practice.
Those are the dangers that I see in it. On the other hand, having expressed the dangers I should like to join forces with my noble friend Lord Henderson of Brompton. At all events, we ought to know what is the legal effect, if any. He would agree, and I see there is great force in it, with a code of guidance which has no legally binding force, for which local authorities cannot be taken before the courts, or anything of that kind, but which leaves to their own good judgment their activities in matters which concern them and does not rely on anyone taking them to the courts of law over what they have done. In other words, the code could be left, provided there is no legal sanction. As my noble friend Lord Henderson says, it could be left as it is without subsection (6), but I am not sure that it would not be better to leave it out altogether.
3.45 p.m.
Lord Elystan-Morgan: It is on that note on the part of the noble and learned Lord, Lord Denning, that I, from these Benches, should like to endorse what has

833
been said with such force and clarity by all noble Lords and noble and learned Lords who have so far taken part in this debate on this amendment. If anything emerges from the discussion it is the danger of having a code introduced in circumstances where it is inappropriate to have a code at all. The noble Lord, Lord Campbell of Alloway, in his masterly analysis in the debate on codes a fortnight or so ago endorsed one principle of immense importance. It is this. Since there are five or six different types of code, having five or six utterly different effects in law, it is imperative that when Parliament ever has resort to a code it should identify to the letter exactly what the status of that particular code should be. I think that we can put it in these homely terms: the breed of the animal must be specifically spelt out.
That is the very great defect in relation to this provision. On the face of it, as far as the ordinary intelligent layman is concerned, it appears to be mandatory. The subsection states, "shall have regard to". That is the mandatory language normally used by Parliament. But it is clear from what the noble and learned Lord, Lord Denning, and other noble Lords have said, that it has no effect whatever. In other words, it is passing off an utterly unmandatory provision almost in the guise of a mandatory subsection. Therefore I believe that there is at best the danger of confusion and at worst the danger that local authorities will walk in awe of the content of these codes.
I feel that the logic of the noble and learned Lord, Lord Denning, is, as always, unremitting and remorseless. It is this, as I understand it. Where Parliament has already laid down the strict boundaries of a restriction and a code is resorted to, then that code should make no reference to those boundaries but should operate only within them. The draft code—I appreciate that it has now been withdrawn, but it illustrates classically, to my mind, the dangers with which we are concerned—involves itself with delineating, in part at any rate, the boundaries. In other words—
Lord Elton: I think I must remind the noble Lord that the code to which he refers was at no stage meant to be anything but indicative, and my honourable friend has actually withdrawn it in terms and is starting with a blank piece of paper. Therefore to argue from this piece of paper on any intentions we may have is, with respect, misleading.
Lord Elystan-Morgan: I totally accept that it was never the intention of Her Majesty's Government to issue this as a code. If I gave that impression, I withdraw it completely. I am saying that this is, if you like, a student's example of what a code should not be and an example of the danger of mixing the legislative provisions which are in Clause 2 with the provisions which are extra-legislative and intended to be in the code.
I should like to make just one last point. Widdicombe looked very carefully at the situation and I think that Widdicombe produced one of the best argued reports on local government that have been seen for a very long time. Widdicombe made no recommendation in relation to a code. It considered
834
two possible alternatives. One was a national body that would draft some form of utterly non-legislative advice; the other was a system of consensus procedure. It rejected both and said that ultimately it must be a matter of self-regulation.
Very humbly I would suggest that perhaps the best thing that the Government can do is to consider whether it is necessary to have Clause 4 in the Bill at all, as the noble and learned Lord, Lord Denning, in fact has suggested. However, if it has to be there, then clearly subsection (6) should go, because of those inherent dangers that Members of the Committee have already pointed out.
Lord Harmar-Nicholls: Before my noble friend replies, I must say that after listening to the comments so far on these various amendments and from my 20 years' experience as a member of a local authority, I honestly do not see dangers of the magnitude that has been expressed. However, from the experience of the last 15 to 20 years I believe that some sort of guidance, which could take the form of the right sort of code, is necessary. Local authorities have done things which have been shown not to be in the interest either of the local authority itself or of the nation as a whole, so something ought to be done.
Where I differ to some extent from the Alliance Benches is in the fact that so far only 15 or 20 authorities have been clearly recognised, and I should have thought that was a clear indication that something needs to be done to prevent the problem spreading even further. So if it has been decided that something ought to be done and if one has gone so far as to say that a code of practice may well be the answer, I do not see at this stage that a great deal of danger exists in Clause 4 as it now stands in the Bill. Where I think we ought to be on the alert and go into some sort of detailed examination is in subsection (4) of Clause 4, where my noble friend Lord Boyd-Carpenter has tabled an amendment. Subsection (4) is the part on which we ought to be focusing our attention. It is the code itself which will carry the dangers, if there are any dangers, by having it included in the statute.
I hope that when the code is put before both Houses of Parliament, as is suggested, then Parliament will do its duty and see that it represents what is fair and equitable in the light of the experience that we have had so far.
Lord Campbell of Alloway: If the noble Lord will give way, perhaps I may intervene here to save time and seek to clarify the issue. I think it is common ground between my noble friend the Minister and myself that when the code goes before Parliament for approval that will have absolutely no effect on its legal efficacy, which is the issue with which we are concerned. All that it does is enable Parliament to approve the way in which the Secretary of State has exercised his powers. That has nothing to do with the point in question.
Lord Harmar-Nicholls: I am glad of that intervention because I was going to say exactly that, so there is no need for me to repeat it. But the code itself is still the basis for how it will be treated. When one

835
comes to the legal situation—if I may have my noble friend's attention after his intervention—I believe that it is at the point of subsection (6), under which
"Local authorities shall have regard to the provisions of the codes",
that any legal sanction ought to come in. I interpret subsection (6) to mean that, having agreed a code which has the approval of both Houses of Parliament, the local authority shall have regard to it, and if any matter arising from it comes in front of the courts, then the courts shall have regard to what is in the code as approved by the two Houses. So it really means that legal authority is not being put within the statute, but that there is a code which has the approval of both Houses of Parliament and a local authority would then be deemed to be expected to have regard to that code.
If it is suggested at any point that a local authority has deviated from the code and the matter has to go to the arbitrator of a court, then the court shall take it into account. This is precisely what I understood from the noble and learned Lord, Lord Denning, is done with the Highway Code. I believe that that is a most useful example of how a code can be applied and that is what I would expect to happen here: that the courts would have regard to the code, just as the noble and learned Lord, Lord Denning, with his great authority has said that the courts have regard to the Highway Code.
So from my experience I would say that there is nothing terribly dangerous in Clause 4. There would be if the code at which we eventually arrive turns out to be the wrong one, so when we decide the composition of the code under subsection (4), it is then that we ought to be on the alert. Having arrived at that code, we would expect the local authorities genuinely to have regard to it, and if it were suggested that they have deviated from it then the courts should have regard to it but also take into account all the wider issues which surrounded anything that had been done.
Lord Beloff: I find it difficult to follow the argument of the noble Lord who has just sat down and I hope that the Minister will be able to help the Committee. My interpretation of what was said by the noble and learned Lord, Lord Denning, and other noble Lords with a legal background, was the opposite; namely, that the code itself, even if approved by both Houses of Parliament, was not the equivalent of the Highway Code because it dealt with an entirely different aspect of activity and therefore it would have no force in the courts.
If that is the case, then I must admit that my worries are the opposite of those which have been expressed so far. Unlike other noble Lords who have spoken, I do not represent the interests of local authorities nor the National Union of Journalists nor the employees of local authorities, but vicariously, since I live under a perfectly respectable local authority, the interests of the ratepayers whose interests this Bill was originally intended to safeguard. It was intended to safeguard their interests by making it impossible for other local authorities to do what it has been generally admitted some local authorities have done, which is to abuse their powers of giving information in order to make political propaganda.
836
If we are now told that the code is of no force, then I would say, with respect, to the noble Lord, Lord Elystan-Morgan, that a code is not the way to curtail them, any more than is the idea of self-regulation, because we have enough experience to know that self-regulation means nothing whatever to a small number of local authorities.
Lord Elystan-Morgan: Will the noble Lord kindly give way? I think he must have misunderstood me, and if so I am sure the fault is mine. I was saying that Clause 2 is the regulation: that is the legislative prohibition. The code legislatively does not take the matter beyond that. I was arguing that rather than having a non-legislative code, why not do what Widdicombe suggested, which is to have self-regulation? It is a different argument.
4 P.m.
Lord Beloff: Obviously I accept the noble Lord's explanation, but I should still like to hear from my noble friend whether the Government are convinced that Clause 2 in itself provides a sufficient safeguard without the necessity of a code; that is to say, whether it provides the legal sanctions which exist, or ought to exist, in all cases of misdoing whether by individuals or companies, as has been referred to, or by local authorities. To me as a layman the debate on the amendment seems to suggest that at any rate the codes do not provide the protection sought for the ratepayers. The words "advisory" or "non-advisory" seem almost irrelevant. Whatever is said, apparently the code can have no legal effect. I should like to hear what the Government's view now is on their powers to safeguard the ratepayer.
Lord Airedale: I echo the hope of the noble Lord, Lord Beloff, that the Minister may be able to enlighten us. I have a feeling that the Committee finds itself in considerable darkness with regard to the matter. It was some time ago that the Minister intervened in the speech of the noble Lord, Lord Campbell of Alloway to express reservations whether the recent judgment of the noble and learned Lord, Lord Brightman, was of any assistance to the debate. I am bound to say that I share the Minister's misgivings. As I read the judgment, the noble and learned Lord, Lord Brightman, was saying that he put aside the code of practice not because of any general principle about it but simply because, as the noble Lord said, it did not add anything to the statute relative to the solution of the problem before the court.
The noble Lord, Lord Leatherland, referred to the district auditor. Is he to have regard to the code? Presumably he is. Suppose that a dispute arises between the district auditor and the local authority, the dispute goes before the court and part of the district auditor's case is, "I took guidance from the code of practice". Presumably the court, in deciding whether his case is good, will have at least to look at the code of practice in order to decide whether it considers that he acted properly.
Lord Elton: I am obliged to the noble Lord for that intervention. I think that I ought to start with Clause 2, although it is not the subject of the amendment, because it has been prayed in aid two or three times.

837
The noble Lord, Lord Kilmarnock, said that the courts would be fully taken care of by Clause 2, and other noble Lords have suggested a linkage between Clause 2 and Clause 4. Let me start on a important point that I had hoped to get clear on Second Reading but about which I think there may still be misunderstanding. There is no effect of Clause 4 on Clause 2. Clause 2 describes material that cannot be published. That is the statutory prohibition that the noble Lord, Lord Elystan-Morgan, correctly pointed out. And that is all that it does.
The meaning of Clause 2 is expressed in the words of Clause 2 and by those words alone. It is those words that will be applied to material which has to be tested to see whether it is prohibited by Clause 2. The code under Clause 4 is not intended to interpret those words, nor is there anything in the clause that we are now looking at, or anywhere else in the Bill from start to finish, that suggests, permits or provides that it should. Neither Clause 4 nor the code will have any effect at all on Clause 2.
My noble friend Lord Campbell of Alloway cited references using the phrases "shall have regard to", "regard shall be had" and "shall have particular regard to". He quoted references to that sort of language in the clause. But I repeat that clauses are interpreted independently and the shading of meaning in Clause 2 will have no effect on the interpretation of Clause 4. As to the shading within Clause 2, which is an interesting question, I took note of that on the first Committee day and I have not lost sight of it.
Let me turn now to what the code will do and why we want it at all. I at once share and echo the anxieties of my noble friend Lord Harmar-Nicholls, and indeed some of those of my noble friend Lord Beloff. I do not think that anybody can have failed to notice over the past decade or so the steady and considerable increase that has taken place in the efforts of some local authorities to communicate with their electors. That is no bad thing in principle, because ignorance obstructs accountability and publicity dispels ignorance, provided it is proper publicity and not designed to compound ignorance; and that is what we are concerned with. I am glad to see the noble Lord, Lord Elysian-Morgan, still nodding his head. I suppose that it will stop fairly soon. But publicity is expensive and, if it is effective, it affects a great many people. Moreover, as Widdicombe points out, that expenditure has not just grown; it looks like continuing to grow indefinitely.
Again I must pause to put right a misconception in case I have by some mischance lodged it in your Lordships' minds. I am not now in this clause talking about party political publicity. That is the subject of Clause 2, and if Clause 2 is effective there will not be any. I am now talking about the large range of legitimate publicity about matters that are properly the concern of a local authority and about which it can, and very often should, put information out to the public.
There is a wide range of such matters and a large number of different ways in which they can be presented. Some of those ways are, as Widdicombe points out, highly intrusive. The tone of what is said or
838
depicted can therefore be as important as the content. As Widdicombe says in paragraph 142, it can be perfectly proper to give a short and even a shocking message in connection, for instance, with a road safety campaign, but that would not be appropriate when explaining the reasons for a complex or controversial new policy. Given the increasing amounts of money that local authorities are spending on publicity, the need to get value from that money in what is now a sophisticated market and the need to satisfy the ratepaying public that they have done so, it seems to us that some standard of good practice is needed as a yardstick. All publicity should, after all, be balanced, informative and cost-effective.
The purpose of this clause is to establish just such a yardstick in the form of a code of practice. It is, I emphasise, a yardstick; it is not a straitjacket that the code will eventually provide. I say "eventually" because, of course, at present there in no code of practice, and nor will there be until some time after the Bill has been enacted.
I must pause again to repeat the assurances that I have just given on an interruption, on Second Reading and on the first Committee day. I shall repeat them because the interruption was necessary. The indicative code that we placed in the Library was the roughest and most embryonic of things. Since then my honourable friend the Minister for Local Government has had a most useful discussion with the local authority associations, in which I joined, I may add. In it he agreed to withdraw this cockshy altogether and to embark on discussions with them over a clean sheet of paper early in April.
I cannot therefore tell your Lordships what in detail will be in the code, but you will know in due time, because, following our Amendment No. 18A, if your Lordships are kind enough to accept it, no code can issue until you have agreed it; and also following that amendment, if your Lordships are kind enough to agree it, no alteration can be made to such a code without your having a chance to reject it. Having read with interest and care the debate on the Motion of my noble friend Lord Campbell of Alloway about codes of practice on 15th January, I think that that is something that will find general favour with your Lordships as a whole. I accept that my noble friend is rapidly becoming an acknowledged expert in the field. But, important though that debate was, I cannot think that we must stop altogether providing in statute for codes of practice until we have a new procedure for placing codes in different categories, as was then suggested.
I cannot therefore tell your Lordships in detail what will be in this code, but I can give the outline of what will be in the code because it is stated in Clause 4(1). It will be a statement
"of recommended practice as regards the content, style, distribution and cost"
of the publicity material we have been talking about—the matters set out in Clause 4(1) which are those that Widdicombe said we should be concerned about. And it is about them that we shall consult with the local authority associations. We shall be required to do so by subsection (5) of the clause. By "consultation", I do not mean a perfunctory contact.

839
I mean proper and careful consultation and exchange of views.
Everything that I have said so far has been, in a sense, preliminary. I apologise because it has taken four and a half minutes; but it was, I believe, necessary. In order to decide the questions that these amendments put to the Committee, we must be clear as to what the questions are about as well as what they are. The questions are about a free-standing clause that, as I have described, has no effect on the interpretation or scope of Clause 2; that is made necessary, as my noble friends have underlined, by the recent and considerable increase in local authority publicity and its changing nature; that will deal, as I have described, with such matter as its content, style, distribution and cost, all of which are matters to which Widdicombe directed our attention; that will not be based, as I have underlined, on the indicative code to which some of your Lordships have kept referring mentally when trying to think what it would look like, as that version has been done away with; that will be based instead on thorough discussions with the local authority associations concerned and other interested bodies; and that will not be issued until it has your Lordships' own specific agreement. It will be designed, in short, with the close assistance of the users, and it will be supervised by Parliament itself—a pretty safe process whatever its status. It is the status of the code which the amendments seek to alter.
I have described in five minutes what the question is about. This is what the question is. It is what the local authorities themselves are anxious about and need to have clarified, as do your Lordships and my noble friends. So let us start with the status that we now propose. It is expressed in Clause 4(6). It is simply that of something to which local authorities must have regard when they decide whether to spend their ratepayers' money on a piece of publicity. There is no other duty in the matter. There are no other statutory requirements. All we have, all we ask for, is that when a local authority embarks on publicity, it shall have in mind the provisions of a code—a code drawn up in close consultation with local authorities' own associations and vetted and approved by this very House, by your Lordships yourselves.
Your Lordships will notice that there are no sanctions attached to this clause for failure to comply with the code. I have to point out to my noble friend Lord Harmar-Nicholls that there is no punishment for its breach and no penalty for any course of action. It will simply be a necessary part of the council's consideration of whether to incur expenditure on publicity. We have even seen and will remove as misleading the references to the code being "in force" to which the noble Lord, Lord Airedale, understandably took exception and put down an amendment. I refer to my amendment, Amendment No. 19A.
I go further. Your Lordships will see that even that duty extends only to having regard to the code, having it in mind, in other words, when decisions are made on this class of expenditure. It does not require—your Lordships can see that it does not require—even that the authorities shall abide by the code, drawn up, though it will be, in close consultation with their own
840
representatives; vetted and approved, though it will be, by your Lordships' own careful House and another place. Having considered it, they can, if they so wish, take a course other than what it proposes. That is really not a very onerous or dangerous requirement, in my submission. But it is a requirement that these amendments would strike out of the Bill. Why do we need it in? Ninety-nine times out of a hundred, I am sure, councils will have in mind such a useful and relevant code, which they have helped to make and which your Lordships have vetted, simply because it will be useful as well as prudent to do so. They will want to. And ratepayers, aware of this, will have something to test their performance by. That will be the normal and everyday course of events.
Why then place this modest duty on them at all? Why not diminish it to the sort of non-committal pointer that these amendments propose in one form or another for the end of subsection (1)? The answer is, because of those very same ratepayers. It is their money the council will be spending, and on their behalf, let us remember, that they are supposed to be spending it. Those ratepayers have a right to expect, and their council has a duty to provide, decisions that are based upon a proper consideration of all the relevant factors in every area of policy. When it comes to the spending of ratepayers' money, the councils must consider their duty to their ratepayers to use their money with the utmost care. That duty is called their fiduciary duty. When the decisions relate to the spending of money on publicity, we propose that this code, drawn up in the exemplary way that I have described, must be a relevant factor. It would be absurd if it were not. It follows that there should be a fiduciary duty to consider it. That is what subsection (6) provides.
4.15 p.m.
The ratepayer has no right to demand, and the council no duty to undertake, that the council reach any particular decision on anything, only that they consider the relevant factors before they make their reasonable decision. That consideration is all that we intend to ask of them in this Bill. We do so in language that is well precedented in statute. I am sure that my noble friend Lord Campbell of Alloway will have noticed from his researches at least Section 60 of the Control of Pollution Act 1974—a Labour Government provision—and Section 125(5) of the Local Government Act 1972, as examples.
My noble friend drew your Lordships' attention to three cases. There was the case of Puhlhofer, the gentleman embroiled in a case with the London Borough of Hillingdon. The judgment was delivered, I believe, on the 6th February. I have been able to read the judgment, and I have had the judgment read. Along with the noble Lord, Lord Airedale, I have almost insuperable doubts about its relevance. The noble and learned Lord, Lord Brightman, made two relevant points, as I see it. One appears on page 6 in the second complete paragraph where he tells us that the code of practice actually gives no assistance in, and therefore, one must assume is not relevant to, the case in question.

841
The other reference is on page 9, one-third of the way down the second paragraph, where he said:
"The plight of the homeless is a desperate one and the plight of the applicants in the present case commands the deepest sympathy but it is not, in my opinion"—
and he said this, remember, after he had dismissed the relevance of the code
"appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case".
His stricture therefore is for us a general stricture on the use of judicial review which should, he says, be very sparing. Who would contest that? Certainly not I.
I understand that the considerations in the Notts and Bradford cases were the same as they were in the case of In re W. None dealt with the status of codes. And it is the status of codes to which these amendments are addressed. The terms that we have drawn in the Bill are precedented. Even if they were not, this requirement would be a reasonable and, indeed, a minimal one. It is precedented. If we take it away, we shall deprive the ratepayers exactly of that fundamental reassurance about the proper conduct of local government that I believe, and the Government believe, we owe to them. It is on their behalf, as well as my own and that of the Government, that I ask my noble friends and your Lordships generally to leave these familiar words in the Bill—they do not, I should add, bring surcharge onto councillors—and not to press the amendments.
Lord Stewart of Fulham: Before the noble Lord sits down can he reassure me on this point? He has told us on many occasions that any code that comes into existence under this Bill would have to be vetted and approved—I believe that those were his words—by this House. I have heard it argued on more than one occasion that it is no longer constitutionally proper for this House to reject a regulation or statutory instrument of any kind that has been approved in another place. Under this Bill if a code is drawn up, approved by the other House, and then comes to this House, if it is what the majority want to do, have we the right to reject it? If not, the assurances of the noble Lord that it has to be vetted and approved by this House cannot carry any weight.
Lord Elton: Your Lordships will have the right to reject it. There are questions of precedent and timing here. The noble Lord, Lord Henderson of Brompton, is familiar with these in the context of the prevention of terrorism legislation which is of an altogether different order. I speak subject to correction, but as I understand the normal course is that if there is a prospect of the House disagreeing with something of this sort, the Government think very carefully about what is in it before they bring the matter here. The immediate effect is therefore pre-empted. But your Lordships have the right to pray against instruments. Your Lordships are not encouraged to do that—and the noble Lord the Chief Whip opposite is aware of this—but the statutory right is there. I am not offering a paper gun with which to shoot a tiger. I suggest that your Lordships are asking to take fright at a paper tiger and that if you do you will take out of the Bill exactly
842
the substantive and important reassurance that ratepayers—who are sick to the back teeth in many parts of this country of the abuse of publicity expenditure—expect your Lordships to give them, so please do not take it out of the Bill.
Lord Underhill: I do not propose to follow the noble Lord the Minister on this question of what will happen when the orders are before us. We shall deal with that matter at an appropriate stage. But I should like to intervene in this debate to put a completely non-legal angle as the ordinary person might see the situation. May I say in passing that I am certain the noble Lord, Lord Beloff, did not mean to say what it sounded as if he said when he referred to the interests of people in local government and journalism and so on. We are all concerned with one thing only: what is best in the interests of local authorities, local government and the people who are represented by local authorities.
The Widdicombe Report gave considerable attention to the whole question of tone and presentation. It dealt lengthily with this in paragraphs 206 to 218. What did Widdicombe say at the end of the day? The report said that, having considered this deeply, the committee thought that the way to handle this matter was by self-regulation. They justified self-regulation in quite a number of paragraphs, to which reference was made at Second Reading and which I do not propose to repeat.
The Government have not answered the statements made by Widdicombe as to why they believed it should be self-regulation. That has never been answered. It is true that the local authority associations had a useful discussion with the Minister on, I think it was, 19th February. As far as I am informed, all the representatives of the associations made clear that they wanted self-regulation, that they opposed the proposal in Clause 4 for a code, and offered once again—as they have done before, and I believe the Government have accepted—that they will co-operate in drawing up a code of practice. One would hope that there will be agreement on what will be the code of practice. It would be difficult for the Government if, having decided that they will have subsection (6) in Clause 4, the associations, and the Government could not see eye to eye on what should be a code of practice.
I repeat: why are the Government ignoring what the Widdicombe Report has said on the question of self-regulation? The Minister, Mr. William Waldegrave, said on 17th December in Standing Committee in the other place, at col. 370:
"My right honourable friend the Secretary of State made it clear that he would not issue the code until after Widdicombe part 2 had reported".
We have not had Part 2 yet. If Part 2—the final report—comes out against any statutory code, what will be the situation if we have carried this into effect this afternoon? We are awaiting Part 2 as the Government know.
We have also had the statement made by the Advertising Association—which everyone will agree is a very reputable body. They say:
"So far as advertising in general is concerned, the principle of self-regulation is accepted by Government, industry and consumers, and we recommend that this should also apply, so far as is practicable for the local government sector".

843
Commenting that Clause 4 is rather vague, the association recommend that any code
"should primarily be guidelines rather than rigid rules".
I find that in his closing speech relating to this clause in Standing Committee in the other place—and I am quoting now from col. 391—Mr. Waldegrave said:
"We do not believe that in the code it would be feasible or sensible to go to the level of detail and exactitude which would be necessary to make the code enforceable as detailed statutory code".
I have no legal experience or knowledge, but noble Lords with such knowledge emphasise what subsection (6) either means or does not mean.
Mrs. Rumbold, the Under-Secretary, at col. 360 on the same day as the quotation I have just given from Mr. Waldegrave, said:
"I understand that the code of practice will be similar to the Highway Code, and could be taken into account by a court defining what is balance and what is not".
That leads me to what the noble and learned Lord, Lord Denning, said. This is what the ordinary person will read into this, that it is a statutory requirement. They will not read into this that it is guidance for which we are asking. The noble Lord, Lord Harmar-Nicholls, said that there must be some form of guidance; guidance is necessary. That is what the provisions of both Amendments Nos. 16 and 17 give—guidance. We want guidance to be given to the local authorities.
There will be points arising as to the propriety of the whole of Clause 4. Obviously we must discuss the question of the codes now because it is very important that we decide on two things. Do we believe that we do not trust the local authority associations to exercise self-regulation? That is what Widdicombe asks for; and the Government have not responded as to why they have no faith in that. If we reject self-regulation, what is to be the status of the code? We have to take into account what the legal gentlemen have said about this.
Whatever else happens, I hope that we shall support Amendment No. 19 and take out from Clause 4 the whole of subsection (6) and give support to the other amendment.
Lord Bellwin: May I briefly intervene to say one thing on what the noble Lord, Lord Underhill, has just said. He asks: do we feel that we should not leave it to the local authority associations to impose self-regulation? But the local authority associations have little or no influence upon many authorities who at the present time act in total contradiction of what the majority of the people in these associations would like to do. We delude ourselves if we simply accept that there are authorities in the country today who will take the slightest notice of any pious hope that there be self-regulation. It is so naive to assume that the ratepayers in some of these authorities—like Hackney and other extreme Left-wing authorities—should expect that your Lordships should decide that self-regulation by their people will be sufficient.
4.30 p.m.
What we are proposing here is simply guidance and nothing more than guidance; guidance which will have to be agreed in any case before it is imposed and before
844
it is accepted. We are not even talking about a code of practice which calls for a legal sanction of any kind. That was made clear by my noble friend the Minister in what I thought was a splendid exposition of the whole position. I have to say that I cannot believe that we shall accept that there are not authorities in the country today who will laugh at the suggestion that they will take the slightest notice of responsible self-regulation.
Lord Elton: Before my noble friend winds up perhaps I may—as this is a Committee stage debate—respond to a couple of points made by the noble Lord, Lord Underhill. The noble Lord pointed out that Widdicombe would prefer a voluntary route, and I quite understand that point of view. I have read paragraph 218 to which the noble Lord directed our attention. It says:
"We believe that tone and presentation is important, but that it would undoubtedly be best if it were the subject of self-regulation".
However, Widdicombe goes on to say:
"We are not convinced that the options we have so far considered offer a workable means of self-regulation".
No one has told us how the Secretary of State can fulfil the expectations which Parliament and the public have put upon him as regards providing a code of practice which will act as a standard of good practice. How can you expect the Secretary of State to discharge that function if you do not give him even the permissive words in the Bill which we propose; namely:
"The Secretary of State may issue one or more codes".
That is all that we ask. It is not, with respect, relevant to the debate, but the noble Lord raised it and it may be in your Lordships' minds as you address yourselves to the proper question of the proper status of this code. I shall not bore your Lordships by going all over it again, but the status is simply something which the council must have in mind when it decides on matters of publicity and on whether to spend your money and mine and that of the ratepayers. That is their fiduciary duty and we ask no more.
Lord Underhill: As this is the Committee stage I must reply to the points made by the noble Lord the Minister. Let us consider what Widdicombe says in paragraph 242. It says:
"No generally applicable effective means of achieving this"—
that is, the self-regulatory code—
"has so far been produced in evidence or emerged from our discussions. We propose to consider this particular aspect further with the local authority associations".
However, it is because of the Government's action in bringing forward what has been described as a "cockshy" that Widdicombe said that it would no longer have discussions with the associations on that particular matter. In my view that is a crying shame because I think Widdicombe should have continued to have discussions with the local authority associations on whether or not there should be self-regulation.
Lord Elton: The Government are carrying on those discussions and I was taking part in them myself last week. Nothing is lost.
Lord Campbell of Alloway: I thank all noble Lords who have taken part in the debate on Amendment No. 16. As my noble friend the Minister has rightly said, the issue is not whether we should have codes of practice at all—that matter arises on the question of whether or not Clause 4 shall stand part, but it does not arise on this amendment. Indeed, matters of self-regulation, to which my noble friend Lord Bellwin referred, also arise in that context.
What we are concerned with here—and it really is a non-emotive matter although of course it can be made an emotive one—is the clarity of the status of the code. I have not sought to import any tone of emotion into my contribution in the Committee.
The problem is that there is a considerable source of confusion, and I say that in the kindest way to my noble friend Lord Harmar-Nicholls. His speech, which was redolent with a series of misconceptions, only went to enforce my point about how necessary it is to have a measure of clarity in this regard. At one point he was even driven, with all his experience in another place—and I do not denigrate that but applaud it—having dealt with legislation for years and years, to get the position totally wrong, because he thought that these codes were in fact to have legal efficacy. If my noble friend can make that mistake in total good faith having attended to the matter, how are members of the public to seek any measure of clarity at all?
This is not the time to deal with Lord Airedale's conception of the reasoning of the decision in Puhlhofer or my noble friend the Minister's reservation in that regard. This is not a matter, as I have said, for a tutorial.
Lord Elton: I was merely saying that, as the noble Lord rested a great deal of his case on the three judgments, I should have thought that whether or not they are about the matter would be very relevant.
Lord Campbell of Alloway: Before my noble friend intervened, I was about to take the liberty to make a point about that to your Lordships. My noble friend the Minister seems to be under a total misapprehension, and that of course is a matter for his advisers. Let me give an example. He says that the case of In re. W has nothing to do with the matter at all. In that case there was a code of guidance along the lines of "shall have regard to" directed to a local authority under Section 12 of the Child Care Act 1980. It concerned a code of guidance to the local authority as to how it should have regard to the requirements and the interests of the wider family of a child in care. It was held in that decision, in particular in Lord Scarman's leading judgment, that that afforded the members of the wider family no right to be heard. So much for the value of "shall have regard to" as giving any enforceable rights in codes.
I only mention that to highlight the measure of my noble friend the Minister's misconception of this matter and I rely very much not upon my own reading of the cases, but upon the way in which, having studied them, the noble and learned Lord, Lord Denning, has mentioned the matter and put it before the Committee today.
846
This is not the time to go into the matter further save to say, with the utmost respect to my noble friend the Minister, that he has got it totally wrong.
Lord Elton: As my noble friend is indulging in emphatic statements of that kind, my advice (and I do not rely upon my reading of the cases, either) is that in the case of In re W there was no reference to "shall have regard". Perhaps we do not want to pursue the matter further. The point that matters is that the common man understands that when the council decides how to spend his money it ought to think about the relevant facts, and this is one of them.
Lord Campbell of Alloway: If my noble friend will look at Section 12 of the 1980 Act he will find the words, "shall have regard". However, let us leave the matter. We cannot go on arguing law on the Floor of the Committee.
The wishes of the noble Lord, Lord Beloff, to have a legally enforceable code beyond Clause 2, are again, with respect, beside the point. It was not the point which I was making and it does not touch upon the merit of the amendment as such, as I think my noble friend Lord Beloff would concede.
What we have to do—and we must do it as part of the revisory role—is to ensure that the status of the code as a code for guidance only, is stated with total clarity on the face of the statute. The fact that the agreement of your Lordships' House will be sought when the instrument is laid, in no way affects status and in no way affects legal efficacy. It is far too late. Once Clause 4 in its present form has received Royal Assent, then that is that—that stamps and determines its status.
My noble friend the Minister opposes this attempt at clarification. The very fact that he does so surely raises a hint of suspicion. Why should my noble friend the Minister oppose an attempt to render totally plain what is on the face of the statute (if the statute is to mean anything) a recommended practice? If it is only a recommended practice, it should clearly be, on the face of those words, an advisory code for guidance. If it is not what the statute says, all the more reason why the amendment should be accepted and we should get this plain. To say that it is a relevant factor as part of a fiduciary issue or duty, as my noble friend the Minister has said, may be fine words; but where does it take one? Is it intended to import some form of legal efficacy? If it is, that is contrary to the plain reading of the statute. Hence again the importance and value of clarity in this amendment.
Lastly, having dealt sufficiently with Puhlhofer, we come to "familiar words". "Oh", says my noble friend the Minister. "Here we have those familiar words `have regard to'. Because they are familiar, let us have them again". But these familiar words have no meaning. At the moment as the result of the debate in your Lordships' House on 15th January—my noble and learned friend the Lord Advocate, in accordance with his promise to consult his colleagues, included his right honourable and learned friend the Attorney-General—and the concern expressed in your Lordships' House about resort to these familiar words in regard to a local authority in the realm of public or administrative law, the matter is under consideration.

847
In all those circumstances and as I understand that my noble friend will not give any form of assurance to consider these amendments on their merits, I think I am forced to take the opinion of the Committee.
4.43 p.m.
On Question, Whether the said amendment (No. 16) shall be agreed to?
Their Lordships divided: Contents, 119; Not-Contents, 108.

DIVISION NO. 1

CONTENTS

Allen of Abbeydale, L.

Jenkins of Putney, L.

Amherst, E.

John-Mackie, L.

Ardwick, L.

Kaldor, L.

Attlee, E.

Kennet, L.

Aylestone, L.

Kilbracken, L.

Banks, L.

Kilmarnock, L.

Barnett, L.

Kinloss, Ly.

Birk, B.

Lawrence, L.

Birmingham, Bp.

Leatherland, L.

Blyton, L.

Listowel, E.

Boston of Faversham, L.

Lloyd of Hampstead, L.

Bottomley, L.

Lloyd of Kilgerran, L.

Brockway, L.

Lloyd-George of Dwyfor, E.

Brooks of Tremorfa, L.

Lockwood, B.

Bruce of Donington, L.

Lovell-Davis, L.

Buckmaster, V.

Mackie of Benshie, L.

Burton of Coventry, B.

McNair, L.

Campbell of Alloway, L. [Teller.]

Mayhew, L.

Mishcon, L.

Campbell of Eskan, L.

Morton of Shuna, L.

Caradon, L.

Mountevans, L.

Carmichael of Kelvingrove, L.

Mulley, L.

Cledwyn of Penrhos, L.

Murray of Epping Forest, L.

Collison, L.

Nicol, B.

Crawshaw of Aintree, L.

Oram, L.

David, B.

Phillips, B.

Davies of Penrhys, L.

Ponsonby of Shulbrede, L.

Dean of Beswick, L.

Porritt, L.

Denington, B.

Rathcreedan, L.

Denning, L.

Reilly, L.

Diamond, L.

Ritchie of Dundee, L.

Dowding, L.

Roberthall, L.

Edmund-Davies, L.

Ross of Marnock, L.

Elwyn-Jones, L.

Rugby, L.

Elystan-Morgan, L.

Saltoun of Abernethy, Ly.

Ennals, L.

Seear, B.

Ewart-Biggs, B.

Seebohm, L.

Falkender, B.

Serota, B.

Falkland, V.

Shackleton, L.

Fisher of Rednal, B.

Shaughnessy, L.

Fitt, L.

Shepherd, L.

Gallacher, L.

Stallard, L.

Galpern, L.

Stedman, B.

Gladwyn, L.

Stewart of Fulham, L.

Glenamara, L.

Stoddart of Swindon, L.

Graham of Edmonton, L.

Strabolgi, L.

Hampton, L.

Taylor of Blackburn, L.

Hanworth, V.

Taylor of Gryfe, L.

Hatch of Lusby, L.

Taylor of Mansfield, L.

Hayter, L.

Tordoff, L.

Henderson of Brompton, L. [Teller.]

Turner of Camden, B.

Underhill, L.

Hirshfield, L.

Vernon, L.

Houghton of Sowerby, L.

Wallace of Coslany, L.

Howie of Troon, L.

Wedderburn of Charlton, L.

Hughes, L.

Wells-Pestell, L.

Hylton-Foster, B.

White, B.

Ingleby, V.

Wigoder, L.

Irving of Dartford, L.

Williams of Elvel, L.

Jacques, L.

Wilson of Rievaulx, L.

Jeger, B.

NOT-CONTENTS

Airey of Abingdon, B.

Auckland, L.

Allerton, L.

Belhaven and Stenton, L.

Arran, E.

Bellwin, L.

848

Beloff, L.

Lauderdale, E.

Belstead, L.

Layton, L.

Bessborough, E.

Lindsey and Abingdon, E.

Biddulph, L.

Long, V.

Blake, L.

Lothian, M.

Boardman, L.

Lucas of Chilworth, L.

Boyd-Carpenter, L.

Lyell, L.

Brabazon of Tara, L.

McAlpine of Moffat, L.

Brougham and Vaux, L.

Macleod of Borve, B.

Broxbourne, L.

Mancroft, L.

Butterworth, L.

Margadale, L.

Caithness, E.

Marley, L.

Cameron of Lochbroom, L.

Maude of Stratford-upon-Avon, L.

Campbell of Croy, L.

Carnegy of Lour, B.

Merrivale, L.

Carnock, L.

Mersey, V.

Clitheroe, L.

Milverton, L.

Coleraine, L.

Mottistone, L.

Cottesloe, L.

Murton of Lindisfarne, L.

Cox, B.

Newall, L.

Craigavon, V.

Nugent of Guildford, L.

Cullen of Ashbourne, L.

O'Brien of Lothbury, L.

Davidson, V.

Onslow, E.

Denham, L. [Teller.]

Orkney, E.

Drumalbyn, L.

Pender, L.

Eccles, v.

Portland, D.

Ellenborough, L.

Rankeillour, L.

Elliot of Harwood, B.

Reay, L.

Elliott of Morpeth, L.

Rodney, L.

Elton, L.

St. Davids, V.

Erne, E.

Selkirk, E.

Faithfull, B.

Skelmersdale, L.

Ferrers, E.

Strathspey, L.

Fortescue, E.

Swansea, L.

Fraser of Kilmorack, L.

Swinton, E. [Teller.]

Gainford, L.

Terrington, L.

Glanusk, L.

Teviot, L.

Glenarthur, L.

Teynham, L.

Gray of Contin, L.

Thorneycroft, L.

Gridley, L.

Tranmire, L.

Haig, E.

Trefgarne, L.

Hailsham of Saint Marylebone, L.

Trenchard, V.

Trumpington, B.

Harmar-Nicholls, L.

Vaux of Harrowden, L.

Henley, L.

Vivian, L.

Hives, L.

Waldegrave, E.

Home of the Hirsel, L.

Ward of Witley, V.

Hood, V.

Westbury, L.

Hooper, B.

Whitelaw, V.

Killearn, L.

Wise, L.

Kimball, L.

Wolfson, L.

Lane-Fox, B.

Young of Graffham, L.

Resolved in the affirmative, and amendment agreed to accordingly.
[Amendment No. 17 not moved.]
Lord Brabazon of Tara: My Lords, I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Vickers Shipbuilding and Engineering Limited: Sale
4.51 p.m.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Lucas of Chilworth): My Lords, it may be for the convenience of the House if I repeat in the form of a Statement an Answer being given in another place in relation to Vickers Shipbuilding and Engineering Limited. The Statement is as follows:
"Last Thursday the Government proposed a short postponement in the date for the receipt of

849
bids for the sale of Vickers Shipbuilding and Engineering Limited to allow prospective bidders for the company to tender simultaneously for the first Trident submarine contract. The prospective bidders, however, saw practical difficulties in such a delay and I therefore decided to proceed according to the original timetable."
My Lords, that concludes the Statement.
Lord Bruce of Donington: My Lords, we are grateful to the noble Lord for having made the Statement. It would seem that this has been an on-off-on situation. First of all, the Government decide that the sale of the yard is to take place on 31st March. Then they decide to delay. Now they decide to fix the date again. I do not know what it is like in Government, but at any rate I know that in the Army we were always taught: order, counter order—disorder. Is it not the case that the DTI has always taken the view that a date should be fixed? The noble Lord today has indicated the victory of the DTI view over that of the Ministry of Defence. Once again, this Statement is a reflection of the evident disharmony that exists between the DTI and the Ministry of Defence.
We have exactly the same situation in relation to Westland. The music of Westland may temporarily have stopped but the melody lingers on. Just what is the Government's policy ultimately to be in this case? Here we have Vickers, which is the only British submarine yard in the United Kingdom. Last year it made a profit of £17 million and the year before £25 million, largely of course due to there being these cost-plus contracts. The company could not lose on them, anyway. Now the Government decide to privatise on a given date.
On what value is this privatisation to take place? On what value? The House is entitled to know. What valuation of any finite kind can be obtained until the contract for the Trident submarine has been finalised? I believe this was the argument of the Ministry of Defence: that it was quite pointless transferring until one knew what the earnings value, which is about 10 times the net asset value, of this contract was to be.
This shows a complete disregard for the interests of the British taxpayer. In the first place, at one fell swoop the British taxpayer is denied the benefit of the profits emerging from the Vickers yard on the basis of its cost-plus contracts which, if the Government's intentions are followed through, will amount to over a billion pounds, in fact many billions.
Thus the taxpayer is denied the income. He will also be denied the capital. He faces a loss because the Government are determined to flog off the company at virtually any price. Prudence would have suggested that if the ridiculous charade of privatisation was to be carried out, at any rate it should be carried out as much as possible for the benefit of the taxpayer by obtaining a proper price.
There is a case, before this matter is concluded, for compensation in the event of the cancellation of Trident being finalised within the contract. On present form, and indeed on past form, it is highly unlikely that the present Government will be returned after the next general election and any investor is entitled to
850
know what is likely to be the compensation for cancellation.
In short, the whole matter is a complete shambles. The Government are divided among themselves on it. We now have the apparent picture of the DTI, and not the Ministry of Defence, in future being ultimately responsible for defence procurement. This is an intolerable situation. It only shows the confusion and disharmony that still prevail within the Government.
Lord Kennet: My Lords, it is difficult not to share some of the suspicions of the noble Lord, Lord Bruce, about what is going on, in view of the fact that Vickers, before obtaining the contract for the first boat, have spent a great deal of money, their money and the taxpayers' money. Now the thought that at this stage somebody in the real world may come in and bid for that contract, and take it away from Vickers, leaves one gasping at the unlikelihood of it. What more can the Government tell us about who it was who might have bid for the contract, to get it away from Vickers, which caused them to consider the delaying, then not to delay? Can the Government tell us what are the bids which are now before them? Is there still time for the appearance of anonymous nominee bids, as in the case of Westland?
If there is, and such a thing appears, what will they do this time? Will they be prepared to let it go through and rely on the cumbersome machinery of appointing inspectors and all the rest of it to find out who it was after it has gone through, which as I think it is now well understood at large, would leave time for an anonymous purchaser to move in and dispose of the future of that firm in a way that the Government could not prevent, because they simply would not have power at that time?
Thus, who are the bidders? Is it simply the employee bid, (which means the banks, and presumably the Government knows which banks—if they are respectable ones) and Trafalgar House? Are those the only two bids, or are there more? Secondly, on the matter of the cancellation payments raised by the noble Lord, Lord Bruce, will the Government admit that there is a temptation, because if they admit that there is a temptation the public and Parliament would be more inclined to believe that they are resisting it, to fix those payments high in order to make Vickers nice and saleable and to dissuade the next government, which may very likely not be them, from following their best judgment, which would be that the Trident system should be cancelled and possibly succeeded by another one?
Lastly, have the Government noticed the public opinion poll published yesterday in the Sunday Times which showed the extraordinarily strong objection of the British people to our national industrial assets being sold to overseas owners?
5 p.m.
Lord Lucas of Chilworth: My Lords, I have to thank the noble Lord, Lord Bruce of Donington, and the noble Lord, Lord Kennet, for their receipt of the Statement that I have just made.
A noble Lord: Why?
Lord Lucas of Chilworth: Because, my Lords, they received it with, in part, some grace; although I think that any confusion that might arise is in the mind of the noble Lord, Lord Bruce of Donington, and certainly not in the Government's mind. The Government's policy was set out on 25th July 1984 when there was an announcement to Parliament that British Shipbuilders were to sell the warship yards by 31st March 1986. That remains government policy and the Government have not changed their policy since that announcement was made.
On 10th October 1985 British Shipbuilders issued the sale documents for Vickers together with Cammell Laird; and that was the last of the yards to be put on the market. The sale documents included a deadline for bids for Vickers with Cammell Laird for Tuesday 25th February, and it was thought that it would be in the best interests of prospective bidders to have an extension of time. However, the prospective bidders themselves decided that it would not be in their interests and asked us to revert to the original time; so that in effect there has been no change at all.
The noble Lord, Lord Bruce of Donington, asked: what are the bidders bidding for? Perhaps I may say that the bidders are bidding for the company as the company stands together with the benefit of a draft contract. The noble Lord, Lord Kennet, asked me a number of questions. May I dispense with the last of his questions: whether the Government had noticed the public opinion polls? I think that my right honourable friend the Leader of the House in another place answered those publicly yesterday. I can add nothing to what he said.
I am not prepared this afternoon to disclose who are the bidders for this company in that they have not given their permission for their interest to be disclosed. It is in commercial confidence and I think that your Lordships would expect me to respect that. So far as I am aware, there is no mystery or nominee bidder on the scene to take Trident away. I think that that was the noble Lord's question.
Lord Kennet: Or to take Vickers/Cammell Laird away, my Lords?
Lord Lucas of Chilworth: My Lords, there is no mystery bidder to VSEL and to British Shipbuilders, who have the matter to consider. I am not quite sure what the noble Lord, Lord Kennet, was trying to get me to answer when he asked whether the Government would admit to a temptation to fix payments high—presumably in relation to the cancellation of any contact. There is a draft contract with VSEL. It is for the bidders, who have full knowledge of the content of that draft contract, to evaluate it in making their bid by tomorrow.
Lord Bruce of Donington: My Lords, the noble Lord has referred to a draft contract. Does the noble Lord know the contents of that draft contract? Does he know what price has been fixed in the draft contract? If he knows, it should be given. If he does not know, on what is any prospective purchaser going to rely; and how can this House or another place form any judgment on it at all? Would it not have been best in any event to await the finalisation of the contract?
852
Then everybody would know exactly where they were, including the noble Lord himself and possibly the Government.
Lord Lucas of Chilworth: My Lords, if I took seriously the comments of the noble noble Lord, Lord Bruce of Donington, I suggest that he waits until the contract is completed; and then he will know.
Lord Taylor of Blackburn: My Lords, is the Minister aware of the great interest in this matter, especially in the Barrow area where, if my memory serves me aright, a quarter of the population are employed there? If there is any chance of their participating in the buying of this firm, they are very much interested.
Lord Lucas of Chilworth: My Lords, of course I understand the interest of the noble Lord, Lord Taylor, in this matter. There is a consortium bidding. I think it is that consortium which would reflect the interests that the noble Lord, Lord Taylor, asked about.
Lord Mayhew: My Lords, does the noble Lord not agree that the consortium may also answer the interests of the country and not only those of the people of Barrow? Can he explain a little more? As I understand it from his answers, the Government decided quite recently that it would be in the interests of those who are applying for this contract—and I gather that there are only two concerned—to postpone the day. And so the Government postponed the day and then they found that, on the contrary, they did not want to postpone. This is very strange: not to consult, to be taken by surprise in this manner and then to have to make a Statement to the House about it. Is this really the reason for the muddle?
Lord Lucas of Chilworth: My Lords, there was no muddle at all. We were not caught unawares. There was nothing at all strange about it. It was thought at one time that it might be in the best interests of prospective bidders to delay the date for bids to be in: that is, 25th February. This was discussed with the prospective bidders and was found not to be satisfactory to them, and we reverted to the original date.
Lord Kaldor: My Lords, if I understood the noble Lord aright, originally the Government wanted to give some more time for other people, other bidders, to come forward so as to find out whether there may be other bidders prepared to buy the company on more favourable terms. Now the Government announce that they are going back on this, that the time which they originally themselves proposed to allow other bidders to come forward is no longer there and that the matter is now to be closed. Can he explain to us why they changed their mind? If they considered it right and proper to allow time for other bidders to come forward, what is it that has made them now say, "No, we will not give any more time for the bidders to come forward"? What happened?
Lord Lucas of Chilworth: My Lords, I am not prepared this afternoon to speculate on the noble

853
Lord, Lord Kaldor's understanding of rumour. What I can say is that in October of last year British Shipbuilders issued sale documents which intimated that the deadline for bids for the company was to be 25th February of this year. That is tomorrow. We have stayed with that arrangement although, in between, we had invited potential bidders to express an opinion as to whether they wanted more time and we were prepared to extend the 25th February deadline. In the event, those interested said they did not want an extension. So we returned to—we stayed with, in fact—the deadline of 25th February, which was announced in October of last year as part of the July Statement for the sale of the company.
Lord Mackie of Benshie: My Lords, as I understood the Minister, he said that because of commercial secrecy he could not disclose who the bidders were for this important public asset. Is it not in the public interest that this information should be disclosed? Is he at least prepared to say that any consortium bidding is a wholly British consortium and that there is no foreign interest involved?
Lord Lucas of Chilworth: My Lords, I did not say there was any secrecy at all. What I said was that I stayed with the commercial confidentiality in that those people bidding had in fact declined to make their interests public at this time. Noble Lords, I think, must recall that their bid is to the company, which is a subsidiary of British Shipbuilders, who have to act in the commercial interests of the company. They will then come to the Government, who have to take account of the wider aspect: that is, the national interest. That will be done during the course of events.
Lord Harmar-Nicholls: My Lords, I cannot understand why noble Lords are making such a meal out of this. Nobody knows better than the noble Lord, Lord Bruce of Donington, that this sort of thing happens every day. There is nothing unreal about it. An auction sale can be postponed because it might suit certain people who would be bona fide bidders. It happens every day. We have been told that initially it was said in October that 25th February was deemed to be the sort of date which would allow for the market to be tested in the proper way; and then nearer the 25th February it looked as though it might be to the advantage of potential buyers for the date to be extended, for all sorts of reasons such as arranging their finance and satisfying themselves that the terms of the draft contract which have been referred to are the ones they want.
It is common sense for the vendor in such circumstances to undertake to give a little extra time for such things to be sorted out. But the bidder might say: "I don't want it and indeed it may be embarrassing, having made my financial arrangements and everything else not to go forward on the day we contemplated". This happens every day; and the sort of interchange we have been listening to for the last 20 minutes puts any government wishing to sell into a position where people will not deal with them. We will prevent the Government getting their proper price by the intervention or the suggestion that somebody is
854
cheating, and all sorts of ideas like that. This is why governments often do not get their price. I believe that—
Several noble Lords: Order!
Lord Harmar-Nicholls: My Lords, I am not easily shouted down. The noble Lords are being nonsensical, and in particular the noble Lord, Lord Bruce—an accountant of some repute—knows that it is nonsensical. In the normal running of a business it is right to ask questions, but to make a meal out of it like this is absolutely against the best interests of the shipbuilding and engineering company which wants to get the best price it can.
Lord Molloy: My Lords, I think the House will agree that we have just had a classic example of making a meal of a great big load of rubbish such as I have rarely heard. Could the Minister not answer this: Is it right for us to understand that the Government advanced the view that the date should be extended in the peradventure that someone else might put in a bid? Then they went to those who had already put in the bid, and who said, "No, we do not want any more delay", and so the Government caved in? Is that the situation?
Lord Lucas of Chilworth: My Lords, the answer to the noble Lord, Lord Molloy, is No.
Lord Molloy: My Lords, that is not an answer.
Lord Lucas of Chilworth: My Lords, the noble Lord asked me specifically: is this or is this not the position? I have just answered him by saying, No, it is not the position.
Lord Taylor of Gryfe: My Lords, may I ask the Minister whether the new date that is fixed—I am going back to the original date—will in any way inhibit the prospects of a management/employee buy-out consortium, keeping in mind that arranging these kind of bids, where you are covering a very wide range of interests and have to secure bank support for such a bid, takes a little time? Could I have the assurance of the Minister that the new date will enable the management/employee buy-out consortium to participate?
Lord Lucas of Chilworth: My Lords, since the two dates are but five days apart, the suggestion having been made on the 20th February that there should be an extension and the return to the original date of 25th February—I repeat, my Lords, the original date: there is no new date—I do not think that would have inhibited any serious bidder. I think I can give the noble Lord the assurance he is seeking, that the return to the original date will not inhibit any serious bidder.
Lord Hatch of Lusby: My Lords, the noble Lord appears to be stonewalling. He told us that the Statement was made last Thursday, 20th February. Why does he not tell us what caused that Statement to be made? What had happened between last October and the 20th February to cause the Government to decide that they were going to extend the date to just

855
five days later? Then, only three days later, they changed their minds again. Surely this is a matter where the Minister can see that the House has a right to have a thorough explanation, and not for it just to be said that the Government changed their minds between last Thursday and today. What happened before last Thursday to cause them to make that Statement then, and what has happened since last Thursday and today in the context of a period that goes back to last October?
Lord Lucas of Chilworth: My Lords, it only recently became clear that negotiations between the Ministry of Defence and Vickers Shipbuilding and Engineering would not be complete before the date set by British Shipbuilders for the sale of the company: that is, that the 25th February should be the deadline for bids. It might have been of mutal advantage to run the two competitions simultaneously, but that did not prove to be possible. The original timetable, therefore, is acceptable to all those concerned in these matters.

Social Security Benefits: Uprating
5.17 p.m.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Baroness Trumpington): My Lords, with the leave of the House, I should like to repeat a Statement which has been made in another place by my right honourable friend the Secretary of State for Social Services. The Statement is as follows:
"With permission, Mr. Speaker, I should like to make a Statement about the uprating of social security benefits. As the House knows, benefits were increased only three months ago, at the end of November. We have made it clear that we intend to move to April upratings from 1987 in order to bring tax and social security closer together and to ensure that benefit changes coincide with changes in rents and rates. The uprating that I am announcing today enables the transition to be made and is the second of three upratings in the 16-month period from November 1985 to April 1987.
"These further increases will be paid in the week beginning 28th July and will be based on the change in prices between May 1985 and January 1986 when the Retail Price Index rose by 1.1 per cent. The overall cost of the new increases will be an extra £410 million in a full year and they follow the 7 per cent. increases in benefits which were paid from last November.
"As a result, the retirement pension for a married couple will rise from £61.30 to £61.95 a week and for a single person from £38.30 to £38.70. Public service pensions will be increased by the same percentage, as will benefits for disabled people and war pensioners. Mobility allowance will go up to £21.65 a week although transport costs have in fact fallen over the period.
"The basic rate of unemployment benefit will also be increased by 1.1 per cent. from £30.45 to £30.80 for a single person and from £49.25 to £49.80 for a married couple. Other main contributory and non-contributory benefits will be similarly increased.
856
"I made it clear last year that the Government believe it right to continue child benefit for all children irrespective of the income of their parents. But I also said that we have to consider its level both in relation to overall priorities within social security and also with the aim of doing more for families with children on low incomes. I have considered the uprating of child benefit on that basis. My conclusion is that child benefit should be increased by 10p a week to £7.10—rather more than the rate of inflation. The older children's rates for supplementary benefit and the age related amounts for family income supplement will also go up by slightly more than 1.1 per cent.
"Mr. Speaker, three upratings in 16 months places inevitable administrative burdens and costs on local authorities and local offices of the DHSS. To sensibly contain this extra work I propose to increase the long term rate of supplementary benefit and the housing benefit needs allowance by the same cash amount as will apply to retirement pension, which means putting supplementary benefit up by 1·1 per cent. although the increase in prices after excluding housing costs is 1·2 per cent.
"For similar reasons I do not propose to make any general changes in the additional amounts paid with supplementary benefit. In some cases no increase would be due in any event and in the others only small amounts. However, I have thought it right to increase the higher rate of heating addition which goes to the very elderly, the severely disabled and to people with homes which are specially difficult to heat. This addition will increase from £5.45 to £5.55 a week.
"One other change will be made from this July which is consistent with bringing the current supplementary benefit scheme into line with the new proposed income support arrangements. From the date of the uprating no new awards of the non-householder housing addition will be made between the ages of 21 and 24. Equally, no deductions will be made from the householder's housing benefit or supplementary benefit in respect of such non-dependants in this age group. This means that the poorest households will remain fully protected. There will be no increase in the amount of non-dependant deductions generally nor will there be any increase in the deduction from benefit which applies during industrial disputes.
"Mr. Speaker, there are two other matters I should mention. First, over the last few years there has been a steep rise in supplementary benefit single payments. Since 1981 the number of these payments has risen from under 1 million a year to over 4 million and the real cost has increased by over five times to more than £300 million a year. My honourable friend the Minister of State for Social Security has reviewed the position and as a result I am today referring draft regulations to the Social Security Advisory Committee for consultation in the normal way.
"Second, concern has been expressed over future policy on the payment of benefits at post offices. In a report by the Public Accounts Committee last summer the possibility was discussed that cash incentives should be offered to beneficiaries to

857
encourage payment directly into bank accounts. I am aware that this has led to anxiety that the existence of many sub-post offices might be threatened if inducements were paid which reduced significantly the volume of benefit business which they transact. To remove that anxiety I want to make it clear that the Government do not intend to offer cash incentives. We recognise that very many people wish to retain the option of being paid in cash at post offices, and it is clear that post offices will retain an important role in the payment of benefits in the future. In order to ensure that the service to the public is as effective as possible, a joint study is being carried out by the post offices and my department to see what improvements can be made.
"Mr. Speaker, I am laying before the House a full schedule detailing all benefit rates payable from next July. This uprating will mean that in 1986–87 spending on social security will be almost £43 billion—that is 31 per cent. of all public spending.
"The last time that an uprating statement was made less than a year after the previous one was in 1975 but the circumstances today are very different. In 1975 inflation was out of control and the value of savings was being sharply eroded. Today inflation is low, which is to the benefit of the whole nation—but perhaps most of all to millions of pensioners. This interim increase keeps pensions ahead of the rise in prices since this Government came into office and I will be making a further uprating statement in the autumn."
My Lords, that concludes the Statement.
Baroness Jeger: My Lords, I sincerely thank the noble Baroness the Minister for reading that long and complicated Statement. It is very difficult for the House to take on board the full significance of every single word and figure in the Statement. Personally I shall try to absent myself from loquacity, but there are certain points which are very important to millions of people in our country and I must ask the Minister whether she can answer one or two questions.
Is it the case that the extra payments that have been announced today will not be made until 28th July 1986, and that those upratings will have to last until April 1987, whatever happens as regards changes in the retail price index or inflation? That would seem to be the effect of the last sentence of the first paragraph of the Statement, and I only hope that I am wrong.
The many points that have been raised, especially the more fundamental principles underlying the Statement, will, of course, be due for discussion when the Social Security Bill comes before your Lordships' House, but for the moment I must ask especially about child benefit. The noble Baroness said that child benefit will go up higher than the rate of inflation. That puzzled me, because I seem to recollect that last November, when there was an uprating, child benefit went up by 5 per cent. less than the rate of inflation. Though I am very bad at arithmetic, it seems to me that to make good the cut in real terms that child benefit suffered last year there would have to be an increase of 45p a week. Certainly to take any praise for the fact that this paltry increase is a little above the
858
current rate of inflation, without confessing that there was that shortfall last year, seems rather unfair.
Moreover, when I look at what is happening to other children, I find that the child's special allowance is to stay at £8.05, with no increase at all. Perhaps the noble Baroness can advise me whether that is the case, because this departmental document which I have states that child dependency additions and the guardian's allowance are not to be increased at all. So I feel that in this situation there is minimal help for children and therefore for families. The Government make a great deal of what they are doing for families and it should be made absolutely clear that the amount of help they are giving is very limited.
Then there is the question of heating allowances. The recent cold weather has brought this matter to public attention. I know that concerning this matter there is a great deal of sympathy and understanding in all parts of the House. Can the noble Baroness make it clear that the modest heating allowances which are referred to in this document will not be paid until the end of July? That seems to be a delay which is hardly acceptable to people who are very cold at the present moment. When I look at the document I find that not everybody is to have an increase in their heating allowance, that the lower rate of £2.20 a week is to stay at £2.20, that the central heating additions are to stay at £4.40, and that the hard to heat estate rate heating additions are to stay at £8.80 and £4.40. Thousands of people in this country are to be excluded even come July from additions to their heating allowances.
It is very interesting that the Statement referred only to the increases, and that one has to look at other documents to find cases where there are no increases. I am especially concerned and have been for many years about the position of blind people. The blind addition, which is a pitiful £1·25 a week, is to stay at £1·25 a week. There is no addition to the 25p a week for the over-80s. There is to be no increase in the laundry cost deduction and other payments which mean a great deal to people who are really hard up.
I cannot welcome this Statement and I think it is only fair that we should make clear our dissatisfaction with it. I hope that there can be some improvements during the discussions on the Bill, or that in any case we may have an opportunity to debate some of these points, because I am trying to keep myself very strictly in order and not to turn what is a Statement into a debate.
Lord Banks: My Lords, I too should like to thank the noble Baroness, Lady Trumpington, for repeating the Statement made in another place. First, may I welcome the fact that the Government recognise that very many people wish to retain the option of being paid in cash at post offices. I think that is a most important point. Secondly, while we agree with the moving of the uprating date to April, previous experience both with this Government and with their predecessors has shown that when the reference period, which is used to determine the rate of inflation, is moved beneficiaries can suffer.
In this case it would appear that from July 1986 to November 1986 beneficiaries will be 1·1 per cent. better off in the main, but that from November 1986

859
to April 1987, if we assume an annual rate of inflation similar to that which prevails at the moment, they would be more than 4 per cent. worse off. Will that not mean a loss overall for beneficiaries? Does the noble Baroness agree that that is so? Is there any truth in the statement which at least one organisation has put out, that the Government will save £250 million by this operation? Would it not have been better to increase at this uprating by a higher percentage in order to ease the transition?
I turn now to child benefit. I think I am right in saying that that would need to have been increased to £7·40 to make good the cut in the real value which was imposed last November. It is to be raised to £7·10, which involves some small reduction in the cut but leaves it well short of the total cut imposed last November-30p a week short in fact.
In conclusion, I should like to ask the noble Baroness two questions. Can she say that there will be no further reduction in the real value of child benefit? Further, can she say whether it is the Government's intention at some time in the future to make good the cut made in child benefit last November and which remains outstanding after this uprating?
Baroness Trumpington: My Lords, I am appreciative of the brevity of the noble Baroness and the noble Lord, if not of the content of their questions. The noble Baroness, Lady Jeger, asked when the payments will be made. The uprating will cover the period from July 1986 to April 1987, when benefits will be increased again. With regard to child benefits, about which both the noble Baroness and the noble Lord asked me questions, as the House will know we are increasing the benefit by 1·4 per cent., from £7·00 to £7·10. This will more than maintain the November 1985 value of child benefit; an increase of 1·4 per cent. when the January RPI shows an increase of 1·1 per cent.
We recognise that child benefit is an important element of the policy of providing support for families. It is true that child benefit would need to go up to £7·45 to keep pace with inflation since introduction, but we have made clear our intention to focus help on poorer families, as we did in November with the introduction of higher FIS rates. For child benefit we must consider each uprating on its own merits in the light of the circumstances at the time. I think it is worth repeating from the Statement the fact that inflation has gone down very considerably, which means that all these benefits are of far more real meaning to the recipients than they would be under the galloping inflation that existed formerly.
The noble Baroness referred to heating additions not being increased. Our main help with fuel costs for those in receipt of supplementary benefit is through the weekly scale rates. These are being increased in line with inflation. Extra weekly heating additions are not being increased on this occasion because the movement in the fuel price index only between May 1985 and January 1986–1.7 per cent.—would produce an increase of less than 5p. With regard to claimants paying bills, they will be receiving extra help in the form of increased scale rates which are intended to cover normal heating needs among other things. An increase in heating additions in line with the fuel price
860
index would have only a marginal effect. I was asked whether the failure to uprate all heating additions this year will be taken into account for the April 1987 uprating. I have to tell your Lordships that no decision have yet been taken on next year's uprating.
With regard to the change in the uprating date producing savings and what the level of the uprating would be if it had still been in November this year, which I think is what the noble Lord, Lord Banks, asked me, the cost of an uprating depends on inflation over the period measured. We will not know what an uprating in November 1986 would have cost until the inflation figures for May 1986 are available. Whatever happens, pensioners will have their benefits maintained against inflation. The noble Baroness, Lady Jeger, asked about child special allowances and guardians' allowances not going up. Recipients of these allowances will get extra help through child benefit. The same practice has been applied at this uprating as in previous years. There has been no oversight here.
I hope that that deals with the main points raised by the noble Baroness and the noble Lord. If I have omitted anything I shall of course write to them.
Lord Boyd-Carpenter: My Lords, is my noble friend aware that opinion generally, I am sure, favours the stage transfer of uprating dates to April, so as to make them coincide in time with changes in taxation and rates, and that it would congratulate my noble friend and her right honourable friend on their steps towards that end?
Is she aware also that the comparatively modest cash figures contained in the Statement, despite the immensity of the cash outlay of social security as a whole, reflect the success of the Government in dealing with inflation? I was rather surprised that no reference to that at all was made from the Benches opposite.
I have questions to ask of my noble friend on two specific points. First, does her reference to the uprating of war pensions include also, as I hope it does, war widows? In Statements they are generally referred to separately from war pensioners and I hope it is only a misunderstanding that my noble friend did not mention them specifically. Secondly, is my noble friend aware that I for one wholly agree with the noble Baroness opposite that consideration ought to be given to raising the figure for the blind?
Baroness Trumpington: My Lords, I thank my noble friend Lord Boyd-Carpenter for his remarks. Perhaps I may reiterate my comments concerning inflation, which his own remarks just now added to very nicely. I am conscious of the fact that I have not answered the question of the noble Baroness opposite, concerning the blind. I will answer both the noble Baroness and my noble friend by saying that that addition has not been uprated for many years, but blind people receive help for special needs in the same way as other disabled people dependent upon supplementary benefit.
My noble friend Lord Boyd-Carpenter will be glad to hear that war widows are of course included. They were not excluded from the Statement for any reason except perhaps brevity; they are of course included.
Lord Stallard: My Lords, will the noble Baroness record that this side of the House also welcomes the change to April? As the noble Lord, Lord Boyd-Carpenter, has rightly said, it is a change for which many organisations have been campaigning for many years. Our welcome does not necessarily mean that we accept the arbitrary transitional arrangements. That is a different matter. The RPI figures that the noble Baroness announced take no account of the post-Budget increases that will inevitably occur. Pensioners will have to endure those Budget price increases from now until April 1987. If the arrangements made are not arbitrary then that situation ought to have been reflected in the transitional arrangements—but it is not. We cannot therefore accept the transitional arrangements.
I am dealing here with pensioners because I do not have time to deal with all the other aspects; and pensioners and their increase interest me. Is the noble Baroness aware that if pensioners had waited until November of this year and had then enjoyed four months, from November or December until the following March, on a 4 per cent. increase—that is, £1.60 per week—then they would have received double the extra cash that they will receive from the eight months, from August until March of next year, at the rate of 1.1 per cent?
As the noble Lord, Lord Banks, has said, and on my own rough calculations, there will be a saving to the Government of some £100 million on pensioners alone, to say nothing of the saving on the unemployed and on the other beneficiaries. This is obviously another cost-cutting exercise to build up funds for the Chancellor's Budget. Will the noble Baroness say how much money the Government expect to save in total as a result of this measure?
Baroness Trumpington: My Lords, it is unexpected that the noble Lord should sit down so quickly! I am simply not used to it. If I may endeavour to answer the noble Lord's points, pensioners will receive extra help in July, and all movements in the RPI from January 1986 to September 1986 will be taken into account in April 1987. This year's uprating is based upon the movement of prices, as the noble Lord will know. The reason why the uprating is so low is simply due to our success in controlling inflation. It is also because the uprating is based on only eight months' price rises. That success benefits pensioners and others on low incomes most of all. The noble Lord, Lord Stallard, spoke about a cuts exercise. How can this be a cuts exercise when it will add £410 million to the budget in the next year?

Local Government Bill
5.45 p.m.
House again in Committee on Clause 4.
The Deputy Chairman of Committees (The Earl of Listowel): Before I call Amendment No. 17A, I must point out to the Committee that if that amendment is agreed to I cannot call Amendment No. 17B.
Lord Boyd-Carpenter: Before my noble friend the Minister speaks to Amendment No. 17A, may I know whether the observations of the Chair cover also Amendment No. 17C, which seems to me to be in the same position?
Lord Elton: I can reassure my noble friend that they do, because the amendments to which I shall speak cover the same ground.
Lord Boyd-Carpenter: I thank my noble friend.
Lord Elton Lord Elton moved Amendment No. 17A:
Page 3, line 31, leave out subsection (4).
The noble Lord said: In moving Amendment No. 17A, I will, with the leave of the Committee, speak also to my own Amendment No. 18A, which goes with it, and I shall be covering the same ground as that covered by Amendment No. 17B, in the name of the noble Lord, Lord Airedale, and Amendment No. 17C in the name of my noble friend Lord Boyd-Carpenter.
I am sure that your Lordships will agree with the main principle behind these amendments. We consider that the code should be subject to the scrutiny of both Houses of Parliament, and Amendment No. 17A provides for such scrutiny. Your Lordships will be aware that the Bill as introduced in another place contained no provisions for parliamentary scrutiny. There are, in the case of a code of practice such as the Bill proposes, arguments both for and against such scrutiny. Nevertheless, the view of the other place was that such scrutiny should be provided for, and the Government have accepted that view and so, I believe, have your Lordships.
That having been accepted, it was of course plain that the code of practice should be subject to the affirmative resolution procedure in your Lordships' House as well as in another place. That is the purpose of the proposed new subsection (5)(A). The proposed new subsection (5)(B) is a consequential amendment that provides for parliamentary scrutiny of amendments and revisions to a code. It seems wrong to us that the first version of a code should be subject to affirmative procedure but that the Secretary of State could immediately revise the approved code in any way he wished, without further approval. Also in our view, the negative procedure is more appropriate for revisions of the code. In practical terms, revisions may be of a very minor nature indeed, and a further requirement for affirmative resolution could prove too inflexible. There is a precedent for having a different procedure for revisions. In Section 14 of the Local Government Finance Act 1982 the provision for a code of audit practice is so constructed.
Details of the procedures we are proposing can be very briefly described. By Amendment No. 18A, the Secretary of State would be required to lay before both Houses of Parliament any code he proposed to issue and it could not be issued unless it had been approved by a resolution in each House. The procedure for revision of the code is very similar to the negative resolution procedure for statutory instruments but it will not of course mean that the codes are statutory instruments; I merely use it as an illustration. The Secretary of State is required to lay a draft before each

863
House for 40 days. If during that time either House resolves that the alterations be withdrawn, then the Secretary of State could proceed with the proposed revisions laid before Parliament—Clearly my text has omitted an important negative. If during that time either House resolves that the alterations be withdrawn, then the Secretary of State could not proceed with the proposed revisions laid before Parliament. I am obliged to Members of the Committee, for not having noticed that omission either.
I have not yet heard what my noble friend Lord Boyd-Carpenter or the noble Lord, Lord Airedale, have to say on their amendments, but I hope they will agree that in the light of what I am proposing their amendments are rendered unnecessary. Therefore, I beg to move Amendment No. 17A.
Lord Boyd-Carpenter: I do not know whether the noble Lord, Lord Airedale, whose amendment is before mine, desires to speak now. If not, I shall make a few observations, but I was waiting for him to speak.
Lord Airedale: I think the peg upon which I hung my amendment is about to be taken away and I shall not be able to move it; but I am quite satisfied.
Lord Boyd-Carpenter: I am very much in the same boat. As my noble friend knows, at Second Reading I raised the question of the position of this House. I only tabled my amendment when we came to the first day of the Committee stage last week and my noble friend had not then tabled an amendment to bring this House into approval of codes of practice. Therefore, I tabled this amendment simply as a precaution in case the pressure of public business prevented my noble friend from doing so before we reached this stage.
However, there is one point of difference and of interest particularly in the light of the earlier observations of the noble Lord, Lord Stewart of Fulham. I am sorry that he is not in his place. As I understand it, the original proposal was for a negative resolution procedure and my amendment sought simply to put this House in the same position as another place. I beg the Committee's pardon, I should have said an affirmative resolution procedure. My noble friend's amendment introduces the affirmative procedure for, at any rate, the first round.
That has one rather interesting point. Although it is a fairly well established convention that the House does not disagree with another place on delegated legislation of this kind the precedents are, curiously enough, much stronger against it doing so in the negative than in the affirmative case. Some Members of the Committee will recall that there is a not too remote precedent of this House rejecting an affirmative resoution in the case of the Rhodesia order. The noble Lord, Lord Elysian-Morgan, appears to recall that.
Lord Elystan-Morgan: It was 1967.
Lord Boyd-Carpenter: The adoption of the affirmative procedure in my noble friend's admendment in some degree meets the point made by the noble Lord, Lord Stewart of Fulham, with whom
864
I happen to agree. Obviously in the circumstances my amendment will be excluded anyhow if, as I hope, the Committee accept my noble friend the Minister's amendment. However, I felt that that explanation as to why my amendment had been tabled, and the quite significant difference in the character of the procedure in the two, was worth remarking upon.
Lord Campbell of Alloway: I think the Committee owes a considerable debt of gratitude not only to my noble friend Lord Boyd-Carpenter, but also to my noble friend the Minister. However, I wonder whether my noble friend the Minster could possibly arrange for the Committee to be informed of the constitutional position that arises on the point raised by the noble Lord, Lord Stewart of Fulham.
I have no experience of conventions in another place, and practically none of those in this place, but I like to know what I am doing. I have not the slightest idea of the effect of this. I think it is reasonable that all noble Lords should be informed authoritatively of the constitutional position that arises. I hope noble Lords will not think this intervention out of place.
Baroness David: Of course we on this side of the Committee are pleased that this House has been brought into the whole affair. Having said that, it is only a partial satisfaction because it is the convention of this place that we do not vote against orders, regulations and so on; and equally, that we should not vote against a draft. We have sometimes put an amendment to regulations but they have never altered the words of the regulation or order, whatever it may be. The example of Rhodesia is true as the noble Lord, Lord Boyd-Carpenter, said; but we think it was an affirmative, not negative, resolution.
Lord Boyd-Carpenter: It was certainly an affirmative resolution. Indeed, I based my whole argument on the point that it was.
Baroness David: This order will be an affirmative order when it comes before the House. However, I should like to make it quite clear that the power of this House is very little indeed on these orders. The power of the other place is not all that great. It will not have the opportunity to amend the code of practice. It can vote either for it or against it, as I understand it, and our power is really nil. It is a courtesy which we are glad to have.
The Government have conceded half the case by making the initial code subject to the affirmative procedure, but we think that it is rather illogical to allow only the negative procedure for revisions to the code. It would be quite possible for the Government to slip by quite large alterations to the code without your Lordships being aware of them. I know that the noble Lord said that most revisions to the code would probably be quite small, but we cannot be certain of that.
Therefore, we would in fact prefer the amendment tabled by the noble Lord, Lord Boyd-Carpenter, because that would give us the opportunity at least to see and comment on revisions to the code. It would be nice to have confirmation from the Government—
Lord Boyd-Carpenter: Will the noble Baroness allow me? With respect, surely we can comment whether the procedure is affirmative or negative. In neither case can we amend. The only distinction is that the precedents are rather stronger against rejecting a negative procedure than they are against rejecting an affirmative one.
Baroness David: I understand that. We can if we notice that they are on the Order Paper; but I understand affirmative resolutions have to be brought before the House.
Lord Mottistone: I do not understand why the noble Baroness should think that my noble friend's amendment would be any better in what we can say and what we can do than would be the Minister's amendment. In both cases we can adopt as strong a position as we can and sometimes Ministers pay attention and withdraw orders to amend them and lay them again. That has happened within the past year. It does not make any difference whether it is under the negative or affirmative procedure. I do not think that the Rhodesia incident is one which can be called a real precedent; it was a very special case. It is about the only one that has happened in the time that I have been in the House, which is nearly 20 years.
We are making rather a meal of this matter. I think that the Minister's amendment is the better one because it gives a proper position relating to revisions which are not in the Bill at the moment even with the amendment of my noble friend Lord Boyd-Carpenter. I should have thought we have a very good solution in Amendment No. 17A and that we should go ahead with it.
Lord Elton: I am grateful to both my noble friends for their support. I simply say that when an order is laid before the House the convention is that if it is an affirmative procedure then the Motion is to approve it, and that Motion can be voted against. If it is known in advance that it will be voted against, then the Government can take what steps they think appropriate either through the Whips or by amending the order.
The noble Lord, Lord Elysian-Morgan, is making what I can only describe as a face of distaste at what I suggest, but I recall that when I was sitting where he is sitting now I discovered that there was an inconsistency in a sugar order. I do not recall what on earth the sugar order was about, but I do remember the inconsistency. I remember informing our Whips and the Government Whips of this inconsistency, and the Government then withdrew the order, took it off the Order Paper, amended it and brought it back in a satisfactory state. So this does happen. If the noble Baroness who is sitting opposite is going to tell me that, despite her vigour and vigilance which we all admire so much, things will get past her on the Order Paper, then I shall be disappointed to hear it. If I were honest I should be somewhat relieved, because one always expects trouble from an Opposition which spots anything on the Order Paper.
But the fact is that we have a procedure whereby very large amounts of legislation can be agreed by Parliament simply by acquiescence, and the more that
866
is required to be done positively the more time is eaten up which cannot be used for more important things. Given that the important measure of the main code will be on the affirmative order, I should have thought that the Committee would consider it appropriate to spend a lot of time on that—from the debates that we have already had it is quite clear that we shall do so—and that the alterations, which cannot amount in total to as much as the code, in most normal cases might be dealt with by the negative procedure. The hawk-eyed Opposition, aided by the Alliance on one side of them and the Cross-Benches on the other, will keep a very close eye on the Order Paper (as will no doubt some of my noble friends behind me) and alert the Government, your Lordships' House and the world to anything that needs stopping. They have the means so to do in the amendment which I now beg to move.
On Question, amendment agreed to.
[Amendments Nos. 17B and 17C not moved.]
6 p.m.
Lord Ardwick Lord Ardwick moved Amendment No. 18:
Page 3, line 35, at end insert ("and bodies representative of employees of local authorities.").
The noble Lord said: Subsection (5) says that the Minister,
"before issuing, revising or withdrawing a code [shall] consult such associations of local authorities as appear to him to be concerned"
etc. My amendment simply adds,
"and bodies representative of employees of local authorities.".
In moving this amendment I should like to make clear that I continue not to accept the need for a statutory code of practice at all. Self-regulation by local authorities is by far the better course. A professional code has just been published by the Institute of Public Relations for this purpose and I think that if the Government read that code they will find that it is a very promising and pretty rigorous one. However, if Ministers insist on a code which is backed by an order approved by both Houses of Parliament, it is essential that council officers who are likely to be involved in carrying out its provisions should be consulted as well as the associations. The draft code published in December 1985 and written by the Department of the Environment is a warning of what can happen when the professionals are not asked first. Anyway, that code is now withdrawn, thank goodness.
Clause 4 as it now stands provides for consultation between Ministers and local authority associations. That is all right, but it is not quite wide enough; it misses out the people whose professional job it is to operate the code. The local authority associations represent the councils themselves—that is, the elected members—but the officers also need to be consulted. In practice nowadays the information and public relations functions in most councils are carried out by professional journalists and professional public relations people who work in the press and PR departments of the town hall or the county hall. Large numbers of them are members of the National Union of Journalists. I think it would be wrong not to give their representative body the same right to be consulted as the local authority associations. The Government can only benefit from the advice of

867
professional men and women of long experience in the field of journalism and public relations.
I have drawn the terms of my short amendment, which is taken from a clause in last year's Local Government Bill, wide enough to enable other bodies representative of employees to be consulted if the Secretary of State thinks it appropriate, but obviously I am concerned to involve those members of staff who work specifically on information and publicity and who will be directly affected by the existence of a statutory-based code. I hope that the Government will see the amendment as being aimed at improving the operation of the clause and will be able to accept it. I beg to move.
Lord Kilmarnock: Very briefly, from these Benches we should like to support the noble Lord, Lord Ardwick, in his amendment. It seems to us fairly important that Clause 4(5) should be widened to require the Secretary of State to consult bodies representative of council employees. These officers will have the difficult task of interpreting the code, often in circumstances of high pressure from other officers, from journalists and of course from their elected members, as the noble Lord, Lord Ardwick, has already explained.
It seems to me that this is such an extraordinarily reasonable, sensible and straightforwardly practical amendment that the noble Lord, Lord Elton, should have no difficulty in accepting it. As the clause has already been significantly improved by the Committee, perhaps the Government would now like to improve it a little further.
Baroness Faithfull: May I ask the noble Lord, Lord Ardwick, exactly what he means by,
"bodies representative of employees of local authorities"?
I am not quite sure about this term because there are many bodies in one local authority who are representative of the employees. I wonder if I may ask him for information.
Lord Ardwick: I do not think I can go any further into it than to give a generalisation—the principle that employees' organisations should be represented: the professional organisations as well as the local Authority associations.
Lord Campbell of Alloway: I am afraid that I oppose this amendment for almost the very reason that was given by the noble Lord, Lord Ardwick, before I decided to speak. It is rather vague, and it is far too vague and imprecise to be enshrined in the words of a statute. I know that it sounds a little trite for a lawyer to make that sort of comment, but that is the reason I oppose this amendment.
Lord Harmar-Nicholls: I hope that the noble Lord, Lord Ardwick, does not persist in his amendment because I think it will cause a little disruption between the employees and the local authorities. At the end of the day, the associations of local authorities are the authentic voice of any point of view which comes from the local authorities. I think that even to suggest, by adding the employees' representatives to the statute, that they are not, would perhaps create some sort of
868
disruption. I look to the local authorities, who would have the power under the clause as it now stands, to take into account their employees' point of view. Those of us who have served on local authorities know that that is done.
Before a local authority forms its own view, it takes into account the official view of the employees, particularly the associations identified by the noble Lord, Lord Ardwick. To suggest that there will have to be two horses in the shafts may well risk a disruption, which is unnecessary. For this reason I hope that the noble Lord does not pursue this particular amendment.
Lord Mottistone: I should like to add to the words of my noble friend Lord Harmar-Nicholls, with which I entirely agree, the fact that, as I see it, the amendment as worded applies to all bodies representative of employees of local authorities, whereas I think that the noble Lord, Lord Ardwick, was really making a plea for the NUJ in particular. I think that what my noble friend Lord Campbell had in mind is that this amendment, as worded, covers all the trades unions of all the employees of the local authority, which is really going much too far for a matter which is particularly concerned with publicity. In any case, I agree with the arguments that my noble friend Lord Harmar-Nicholls has made, that the trades unions are not responsible for publicity but it is the responsibility of the local authorities, and it is the responsible people who need to be consulted in the usual way. It happens in lots of Bills. This is a very special case. I hope that the noble Lord will not press the amendment.
Lord Underhill: It appears to me, with respect, that the two previous speakers have interpreted the amendment wrongly. With the amendment, the subsection would read:
"consult such associations of local authorities and bodies representative of employees of local authorities as appear to him to be concerned".
The decision will rest with the Secretary of State. I am president of one of the local authority associations. As the noble Lord, Lord Harmar-Nicholls, says, we take into account the views expressed by advisers. I am certain that the Society of Local Authority Chief Executives could do a vital job if it was consulted by the Secretary of State. As the noble Lord, Lord Kilmarnock, said, these are the people who have to carry out the various matters. It has already expressed serious concern about the type of advice that it will have to give its members. It is doubtful whether local authority associations would get direct advice from such people as journalists and public relations officers, who are also vitally concerned.
Lord Howie of Troon: I am a little surprised to hear the noble Lords, Lord Harmar-Nicholls and Lord Mottistone, remind us how amenable and agreeable the local authorities are, since we spent a good part of last year with the Government trying to abolish them for not being amenable and agreeable. That is a most welcome change. I should like to have seen it a year ago, but it is never too late.
However, I think that there is something in what the noble Lord, Lord Campbell of Alloway, said about the imprecision of the amendment. I am sure the noble

869
Lord, Lord Ardwick, will be inclined to agree. But I agree with the noble Lord, Lord Kilmarnock, and others that the idea underlying it is sound. I should like an assurance from the Government that the Minister will consider the principle and perhaps come to an arrangement to have a more precise amendment.
Lord Boyd-Carpenter: The noble Lord, Lord Underhill, is right in saying that the amendment, if adopted, would involve consultation only with such associations of employees as the Secretary of State saw fit. But he knows the trade union world well enough to be aware of the hornet's nest that the Secretary of State would stir up if he started consulting one trade union and not another. He knows very well the friction there. It would be clear that under the amendment NALGO would expect to be consulted and perhaps—and this is a sobering thought—SOGAT 82.
Lord Skelmersdale: In the interests of harmony, I start by agreeing with one thing that the noble Lord, Lord Ardwick, said. He quoted subsection (5) absolutely correctly! Why does the Bill empower the Secretary of State
"before issuing, revising or withdrawing a code"
to
"consult such associations of local authorities as appear to him to be concerned and any local authority with whom consultation appear to him to be desirable"?
It is for the very reason that my noble friends behind me have stated. It is they who are the Aquarians; it is they who carry the can.
I accept that some employees of local authorities will be responsible for the day-to-day use of the code of practice on publicity, but they are among a number of other representative organisations which have an important interest and with which the Government would clearly wish to discuss their proposals but which are given no special status in the Bill. I do not think that we should be justified in making a statutory requirement to consult with them.
6.15 p.m.
I can readily accept that consultation with such bodies is desirable—the right bodies; again I refer to my noble friends behind me. The noble Lord, Lord Ardwick, may perhaps know, for instance, that my officials have had informal discussions with the local government branch of the Institute of Public Relations about the areas which the code might cover. In addition, my honourable friend the Minister for Local Government has also discussed the Bill, including the code of practice, with the TUC Local Government Committee where the major local government unions were represented. Such discussions are always helpful; but I see no reason why the Bill should require them. To do so would immediately imply that any body not included on the list of required consultees would have no right to comment, and I do not think that the Committee would wish that to be implied to those organisations outside local government which clearly have an important contribution to make. Those include bodies representing voluntary organisations and the advertising industry, for example.
870
I fully agree with the comment of noble Lord, Lord Ardwick, about professional men with long experience; but, as my noble friend Lady Faithfull pointed out, those are not necessarily the employees referred to in the amendment. My noble friend Lord Campbell of Alloway and the noble Lord, Lord Howie of Troon, said that the phraseology in the amendment is vague. I am not sure that I should like to be quite as hard-hearted as my noble friend Lord Harmar-Nicholls and describe it as disruptive.
The noble Lord, Lord Underhill, produced two arguments. He spoke first about advice being given to members of local authority associations. It occurred to me, perhaps rather naughtily, that it may be more appropriate to have an amendment for local authority members to consult the appropriate officials. That is a flippant point. The noble Lord mentioned the Local Government Act 1985. As I understand it, the provision that he was referring to is Section 51(5)(a), which is in the part of the Act dealing with staffing matters and so it cannot be described as a good precedent for the amendment. Staffing would cover all employees of the existing metropolitan authorities and the GLC.
I hope that I have said enough to persuade the noble Lord that at best the amendment is not quite as full as he intended and that it certainly would not have the general approval of the Committee.
Lord Ardwick: I take it from those words that the noble Lord may look at something else at a later stage in the Bill. All that I am concerned about is that the Minister should consult the employee associations that he thinks relevant concerned with the operation and interpretation of the codes. That narrows the provision considerably, but I agree that that is not expressed in the amendment. It may be possible to contrive something more acceptable than I have done so far.
Amendment, by leave, withdrawn.
Lord Elton Lord Elton moved Amendment No. 18A:
Page 3, line 37, at end insert—
("(5A) A code shall not be issued unless a draft of it has been laid before and approved by a resolution of each House of Parliament.
(5B) Where the Secretary of State proposes to revise a code he shall lay a draft of the proposed alterations before each House of Parliament and—

(a) he shall not make the revision until after the expiration of the period of 40 days beginning with the day on which the draft is laid (or, if copies are laid before each House of Parliament on different days, with the later of those days), and

(b) if within that period either House resolves that the alterations be withdrawn, he shall not proceed with the proposed alterations (but without prejudice to the laying of a further draft).

In computing the period of 40 days no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.").
The noble Lord said: I have spoken to this amendment, and I beg to move.
On Question, amendment agreed to.
The Deputy Chairman of Committees (Lord Murton of Lindisfarne): Perhaps I should say that if Amendment No. 19 were to be agreed to I should not be able to call Amendment No. 19A.
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 19:
Page 3, line 38, leave out subsection (6).
The noble Lord said: I am advised that, as this amendment is bound up with Amendment No. 16, and as I have spoken to that and there has been a Division on it, I need only move it formally. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton had given notice of his intention to move Amendment No. 19A:
Page 3, line 38, leave out ("the provisions of the codes in force") and insert ("any relevant provisions of a code").
The noble Lord said: I rather think that this is another peg which has disappeared.
[Amendment No. 19A not moved.]
On Question, Whether Clause 4, as amended, shall stand part of the Bill?
Baroness David: The Government have all the time had considerable difficulty with this clause. They have certainly faced difficulty today. A draft code was produced but has had to be withdrawn. We can, however, guess something of the Government's intentions from that draft code. We hope very much, of course, that the next one will be very different from the draft that has now gone.
During our discussion on Amendment No. 16, the Minister suggested that the local authority associations were satisfied now that the draft code had been withdrawn. I have here a letter written by the vice-chairman of the Association of Metropolitan Authorities to the Minister of State, Mr. William Waldegrave. That letter was written the day after the meeting at which the Minister was present with the local authority associations. I should like to quote a few lines from it. It states:
"You will have recognised yesterday that our primary concern at this stage is not the content of the code but its status in legislation. As you know, our preferred option is self-regulation as recommended by Widdicombe—the removal of Clause 4 from the Bill".
So they are only partially satisfied.
I should also like to quote the comments of the Society of Local Authority Chief Executives on Clause 4. They state:
"On all issues, local authorities, their members, officers and ratepayers, are entitled to seek from Parliament a clear statement in a statute of what is or is not permitted. The overlaying of a code of practice by the Secretary of State, as provided for in Clause 4 will produce a state of confusion for those who have to interpret the legislation. It will lead to the provision of two sets of rules, neither of them easy to interpret, one in statute and one a code of practice of uncertain status".
Well, we have improved the clause today—quite substantially, I think. I still believe, however, that it would be very much wiser for Clause 4 not to stand part of the Bill and that we go back to what Widdicombe suggested in paragraph 211 of the report. This states:
"As we have indicated, the criteria for such a body"
this is a sort of complaints body—
"could not readily be laid down in statute. The question, however, arises of devising a nationally accepted code of practice. While it might be possible to develop such a code over time we do not think this would be a simple task".
Indeed, the Government have found that.
872
Again, the report states, in paragraph 242:
"We believe that tone and presentation is important, and it should be controlled. Undoubtedly it would be best, in our view, if this could be done by self-regulation within local government, or through the agency of the local authority associations".
I should like to think that the Government could still see that as the way forward and decide perhaps themselves to get rid of the clause.
It has emerged from the debate—because the Government would not accept the very simple amendment of the noble Lord, Lord Campbell of Alloway—that really what they wanted to do was to impress the ratepayers and to suggest that they were putting something tough into the Bill. I think, in fact, the Minister said—I copied it down—that ratepayers will have something to go by. Maybe, with the thought of elections in May and this Act coming into force on 1st April, the Government would be able to say that they had done something very tough, that they had included this code of practice and that local authorities shall have regard to it.
Lord Elton: As a matter merely of fact, I have made clear that there will be no code of practice in April. That is when we start talking about it. It will take quite a long time to get it ready. I doubt very much that it will be ready by May, or whenever it is, that the great decisions are taken.
Baroness David: I was not suggesting that the code would be ready but that the Government would be able to say that they had put in a clause that will demand a code of practice and that the local authority associations will have to have regard to it. This is the reason, it seems to me, why the Government were so adamant about not accepting the earlier amendments.
We are opposed to this clause standing part of the Bill. However, as we have improved the clause considerably by the amendments already accepted by the Committee, we shall not press it to a vote.
Lord Campbell of Alloway: I oppose the amendment, and here I am afraid—
Lord Elton: It is not an amendment.
Lord Campbell of Alloway: I am much obliged. I oppose the proposal that the clause shall not stand part of the Bill; and here I part company with the noble Baroness who has just spoken. Clause 4, as it now stands, amended by Amendments Nos. 16 and 19, serves a vital and important purpose of clarification of the status of the codes. The advisory status, as now established beyond all doubt in this area of codes devised in consultation, will afford, I would have supposed, a requisite adjunct to self-regulation. It could do a lot of good. I do not see that it could cause resentment or do any conceivable harm. I cannot therefore support the Opposition on Clause 4 not standing part of the Bill.
Lord Denning: I oppose the suggestion that Clause 4 stand part for three reasons. First, the clause, as it originally stood, has been emasculated by amendments already made by your Lordships. The first amendment confines the guidance to local authorities in order to determine expenditure on

873
publicity. That confines the code to a very limited field. The other amendment is much more important. We have struck out subsection (6) which states that local authorities "shall have regard to". That means that there is nothing in the statute to say what the effect of this clause is.
We have discussed codes of practice before, and I have quoted on an earlier occasion what was stated by the noble Viscount, Lord Colville of Culross. Everyone, I think, agrees. The noble Viscount said that,
"if Parliament is going to do this sort of thing… then it must at the same time apply its mind to saying, in terms, what is to be the effect of the code".—[Official Report, 15/1/86; col. 1083]
What is the effect of the code? It is not equivalent to regulations. That is clear. Is it as lowly as a circular issued on departmental authority? That has no legal force at all. Or is it something in between—a code that has statutory approval but not a word to explain what will be its effect if the matter should ever come before a court? Looking at this constitutionally, I would say that it is wrong to have a code in force in which nothing is said about what will be its effect.
Thirdly, the Widdicombe report wisely said, "We cannot decide about this at the moment. Leave it to the time when we get to our final report". Surely, that is a much better way of dealing with the matter than having this clause as it is at the moment. According to what I read, the local authority associations have reaffirmed their willingness to develop and agree a code of practice on the timing and presentation of publicity based on self-regulation within local government, saying that Clause 4 should be withdrawn. It seems to me that this is right, and that in view of the developments that have taken place it should be withdrawn.
Lord Silkin of Dulwich: Not for the first time I find myself very much in agreement—
Lord Campbell of Alloway: I am much obliged to the noble and learned Lord. I wish only to ask a question by way of clarification before the noble and learned Lord, Lord Denning, sits down. Would the noble and learned Lord look, in view of what he has said—I put this with the utmost respect—at Clause 4(1), dealing with codes of recommended practice? Will he then look at Amendment No. 16 which provides "for the guidance of local authorities"? Would the noble and learned Lord not agree that that makes it totally plain beyond all peradventure that the status of these codes is, as he said when he supported my amendment, advisory only and of no legal effect?
6.30 p.m.
Lord Denning: If it has no legal effect then I think that we should have a clause in to say, "This clause is to have no legal effect." Otherwise people will misuse it.
Lord Elwyn-Jones: Embellish the Bill.
Lord Silkin of Dulwich: As I was saying before giving way to the noble Lord, Lord Campbell of Alloway, not for the first time I find myself very much
874
in agreement with the noble and learned Lord, Lord Denning, particularly on the second point regarding the effect of the clause.
I would say that had subsection (6) been left in the clause I would still have found this clause extremely difficult, because one would then have had in subsection (1) a description of the code as being a code "of recommended practice", and in subsection (6) a requirement to "have regard" to it. I would have found it very difficult myself to square the concept of an instruction to "have regard" to something which is merely recommended. We have at least now removed that uncertainty. We have nothing but a code of recommended practice. For the life of me, I cannot see why the Government cannot issue as many codes of recommended practice as they like without incorporating them in a statute.
Lord Kilmarnock: It is always dangerous for a layman to come between noble Lords learned in the law, but I still find it extremely difficult to understand if, as the Government argue, no inflence can be exerted on the judiciary by the existence of a code what the value is of having a statutory based code at all. We continue to argue that a professional, self-regulatory code operated by the IPR in agreement with the local authority associations would do just as well.
One further point is that the powers of your Lordships in respect of this legislation have received a certain amount of debate this evening. We are told that any code which comes before us will now come in the form of an affirmative instrument in the first instance, and then as a negative instrument for any revisions. In spite of the instances which have been given of the exercise of your Lordships' powers in relation to the Rhodesia Order some considerable number of years ago, and the interesting reminiscences of the noble Lord, Lord Elton, on a Sugar Order when he was sitting on the Opposition Front Bench, I do not think that we should be under any illusion that we should have a great deal of effect—if any at all—on any code that eventually comes before us, or any revision of it. That is something we should bear in mind.
I understand that the noble Baroness will not press her objection. However, as a practical consideration, the Widdicombe Report, Part I, at paragraph 218 says that they believed they should consider this matter further and that they would do this with the local authority associations. It appears to me that when they saw the Bill and saw Clause 4 in the Bill, they will have desisted from that intention. Is this not a good moment to put the consideration of the matter back into Widdicombe's court? Should they not be encouraged to proceed to explore with the local authority associations a formula for a code of good practice which could eventually be adopted? Pending that process of consideration, would the Government not be well advised, even with Clause 4 in the Bill, to delay any further action on a code and not to bring anything further forward until we have the Widdicombe Report, Part 2, with its recommendations after discussions with the local authority associations?
Lord Harmar-Nicholls: I think that the amendments which we have made to Clause 4 are a

875
mistake; but we have made them, and that is now the position. I cannot accept the claim by the noble and learned Lord, Lord Denning, that, because it has no clear legal enforcement behind it, the existence of a clause which has been recommended by the Minister would not have some good effect on any decisions which may flow from it. I believe that it would. I believe that the fact that the code was there, that it had had the support of the Minister, and that it was written into the statute would give it that extra status which would make it more likely—even though it could not easily be legally enforced—that the terms behind it would be generally accepted.
I think that we ought to keep in mind what the noble Lord, Lord Bellwin, said on a previous amendment with regard to it being made purely self-regulatory by the local authority associations. I do not think that certain authorities would accept that self-regulation. They would get the bit between their teeth and do things with which, I am certain, Members in all parts of the House would not agree. I am not saying, if we leave Clause 4 as it is now amended, that it would be a clear answer to people who wanted to do that. However, I think that it would be that little bit stronger in trying to persuade them to accept the general message which would come from the code itself. I think we still ought to have Clause 4—amended though it is—in the Bill. I believe that it can only do good and is not likely to do any harm.
Lord Henderson of Brompton: I wonder whether I might have a very brief word before the noble Lord, Lord Underhill, speaks for the Opposition. In its unreconstructed state I should certainly have voted against the clause standing part. But it has been notably improved and clarified. In my view, it has not—as the noble and learned Lord, Lord Denning, said—been emasculated. Matters have been made clearer. We now all know the import of the legislative language of the clause, whereas we did not know that before. The clause has been not only improved by Amendments Nos. 16 and 19—which have taken out misleading words and have substituted precise words—but it has also not imported imprecise words by the grace of the noble Lord, Lord Ardwick, withdrawing his Amendment No. 17.
Further, I think that we must be grateful to the noble Lord the Minister for his Amendments Nos. 17A and 18A. I believe them to be a distinct improvement on a number of grounds, not only because the amendment includes the House of Lords—as it should—but it also leaves out the old subsection (4), which was thoroughly misleading in that it referred to codes of practice coming "into force". We now know that they now have no force at all; so that is an improvement. It is an improvement in that it differentiates between initial codes and variations of codes. If we have affirmative resolutions for variations of codes we shall have no parliamentary time to talk about anything else at all.
For all those reasons, I think that we have given this clause some precise meaning, and I would now no longer oppose its standing part of the Bill. Instead I think that it would be wise to leave it to Widdicombe.
Lord Underhill: There is only one brief point I wish to raise. Although as the clause is now amended it is recommended practice for guidance, I should refer to subsection (2) and remind noble Lords what that says:
"Different codes may deal with different kinds of publicity or different kinds of local authority or the same kind of local authority in different circumstances or different areas".
It might be helpful if the noble Lord the Minister could explain why we might want a different code of guidance for a metropolitan district from that of a shire district, a London borough, or a Scottish district? Why might we need a different code of practice for a shire county from that of a Scottish regional authority? Perhaps the noble Lord the Minister could explain exactly what the words mean,
"or the same kind of local authority in different circumstances".
Lord Elton: Perhaps I may save a little time by reminding the noble Lord that he is only talking about the bigger authorities. Does he really think that a Scottish regional authority should be subject to the same guidance as a parish council?
Lord Underhill: Of course not, but this gives scope for so many different features. In case the noble Lord missed what I was saying when he intervened and asked me a question, let me remind him that I was referring to the different circumstances within a particular kind of authority. What are the different areas? The North of England may have a different kind of code from that in the South of England and from that which applies to the shire counties. We need an explanation as to why that is so. Frankly, my mind boggles at the number of computations that there could be in having different codes applying to different parts of subsection (2).
Lord Elton: Let me begin by endorsing what the noble Lord, Lord Henderson of Brompton, said in different terms by saying that I imagined, in my innocence, that when Members of the Committee voted amendments to the clause which they voted for on the grounds that they were an improvement to the clause they did not do so in the spirit of somebody giving a respray to his car before he put it on the scrap heap! It seems to me that noble Lords have spoken eloquently about the virtues of amending the clause in the sense which my noble friend Lord Campbell of Alloway in a somewhat peripatetic manner has persuaded them to do. I understood that what they were doing was improving the clause for the purpose of putting it in the Bill. I was glad that the noble Lord, Lord Henderson of Brompton, suggested that that was the appropriate course for those who had voted for the amendments and I was surprised that some Members of the Committee should think otherwise.
The status of the code will of course be what my noble friend Lord Campbell of Alloway wishes it to be: that is, a code of guidance. It is true that Widdicombe suggested that it would be a great deal better to have self-regulation among the local authorities, and I have already addressed that point at some length. I need only say that it is not clear from our understanding of recent events and recent utterances that all local authorities would be keen to participate in constructing or, indeed, conforming with a voluntary code, and that the expectation of Parliament and the public is

877
that the Secretary of State will see that a code is delivered. He cannot do that—can he?—unless the Committee gives him the authority to do so, and that is what the clause does.
We would be failing in our duty if we did not ensure that the clause was in the Bill and if we made no provision at all for dealing with the very important matters that we intend it to cover. We hope and expect the associations to have a considerable voice in the content of the code. The noble Baroness read out a letter which said that still the first choice of the associations was self-regulation. I have to say that we do not see that as an acceptable choice for the reasons which I have given, but we remain of the view that the Secretary of State must be in a position to ensure that from our discussions a code emerges and is put in place. Nothing that was said last week or that I have since read has led me to suppose that the discussions will be withheld or that they will not be fruitful.
We live in a changing society. Some of the most rapid changes have taken place in the world of communications. As a result, information which one used to take only by choice at a newstand, or in restrained statements of fact on the hoarding, is piped down cables, echoed from satellites, beamed into the living room, spewed out of ticker tapes, flashed onto Prestel screens, multiplied on disc and tape cassettes; it is galvanised, televised and sloganised until there is no escaping from it. All that costs a great deal of money and affects a great many people.
Where that money belongs to the public, they have a right at least to know that there is a code of standard good practice devised by the Secretary of State in close consultation with the local authority associations and other bodies—as my noble friend Lord Skelmersdale made quite clear—and approved by both Houses of Parliament under procedures which are in fact effective when they bring such matters to your Lordships' House and to another place. I question whether sugar was an appropriate example. However, it was the example to hand in my memory, and one has to make the best of the material that one has to hand. It is a fact that the machinery is present and that the Committee can make use of it.
6.45 p.m.
We are not asking to censor local authorities. We are not asking to curb freedom of speech. We are not asking even to stop Labour councillors making political speeches that promote Labour policies. That may be tempting, but we have not done it. There is no question of stopping politicians of any party speaking in a personal capacity on anything.
All that we want to do is to ensure that some guidelines are set in the light of some of the less desirable developments that have taken place in local authority publicity and which the Widdicombe Inquiry clearly recognised. The only way in which the Secretary of State can ensure that is if you give him the authority. I have said that he does not wish to dictate to local authorities, nor to censor them; nor could he have done so even if he had wished to do so and even if my noble friend Lord Campbell of Alloway had not succeeded in his amendments, because you could stop
878
him by rejecting any code that even hinted at such a preposterous move. The power and the opportunity for you to do so are here on the face of the Bill.
My honourable friend and I have already had useful talks with the local authority associations. I believe that they will result in a code which even in its revised status will, as the noble Lord, Lord Henderson of Brompton, said, be very beneficial. It would be a disappointment of a great order to deny it to those who expect it. I beg to move that the clause stand part of the Bill.
Lord Airedale: The noble Lord, Lord Underhill, has pointed out how the draftsman has gone to town with the word "different" in subsection (2). The word "different" occurs five times in three lines of print. If, when we get to Report, we can leave out the first word of subsection (2), which is "different", I am sure that that will make matters much easier for the noble Lord, Lord Underhill.
Lord Elton: I am not sure how keen I am to make things easier for the noble Lord, Lord Underhill; I get more pleasure from making them more difficult! The point of having this range of choices open is to avoid being boxed in by some absurd and unforeseen position when it arises. I thought that the noble Lord was only concerned about different authorities having different provisions and I pointed out that, whereas it might be quite reasonable to have shires and districts and metropolitan districts and London boroughs under the same constraints, it may well be—and comments made in Committee earlier have suggested that this is likely to be the case—that parish councils ought to have some different criteria applied to them because they are different animals doing, basically speaking, a different job. I keep using the word "different" too, because it is relevant on every occasion.
I cannot, as I stand here on my feet, detect what would be the effect on the wording of subsection (2) of the deletion of the word "different" where it first occurs in line 26. If it has a beneficial effect, which the noble Lord, Lord Airedale, believes will make life easier for the noble Lord, Lord Underhill, then the noble Lord, Lord Airedale, being so much better disposed towards the noble Lord, Lord Underhill, even than I am, will doubtless put down an amendment at Report. However, that is something which we could do while still leaving the clause in the Bill, and I ask the Committee to do that.
Clause 4, as amended, agreed to.
Clause 5, [Separate account of expenditure on publicity]:
Lord Mottistone Lord Mottistone moved Amendment No. 19B:
Page 3, line 42, at end insert—
(", and public bodies or voluntary organisations receiving money for publicity from Local Authorities must make available to the public their accounts, constitution, lists of officers and names of any other groups which share their offices.").
The noble Lord said: This amendment is designed to make public the information relevant for keeping a public check on the implementation of Clause 2(3). The Committee may think that it is a bit elaborate for

879
doing that. The reason for the amendment is that there are quite a few different ways in which money may be spent which are not clear as to whether or not it is being used for publicity. I shall give the Committee an example. Indeed, I shall give you quite a few examples because I think one wants to explain the position fully. I am sorry that the amendment has been taken quite so close to what is normally the dinner break, but that is no fault of mine and I shall seek to say as much as I think I need to say.
Groups may be funded for some purpose other than publicity—for example, running costs or research. They may be awarded a grant for wages. How will anyone know whether any part of that money is being used for prohibited purposes?
The Campaign for Press and Broadcasting Freedom has the wages of its information officer paid by the London ratepayers via the GLC. Who, if this Bill were enforced while the GLC were still in existence, would monitor his work to ensure that he never uses his time to publish material which contravenes the Bill? A number of so-called resource centres are council-funded. They provide graphics, typesetting and printing facilities for other groups. These frequently include local branches of political parties. To keep track of all these activities it is essential to have public records of groups which are funded for publicity and groups which, though funded for some purpose other than publicity, actually publish material.
To give another example, many organisations which receive ratepayers' cash are interconnected. They have common officers, similar objectives, and often share the same address. For example, Lespop (Lesbians and Policing Project); GALOP (Gay London Police Monitoring Group); RAMPET (Research and Monitoring of Police Equipment and Training Group); and, ALTARF (All London Teachers Against Racism and Fascism), each of them GLC-funded, have a common address at No. 38 Mount Pleasant, London.
Another example is that many organisations share common officers. I do not mean "common" in one sense, but officers who are shared between them. For example, the chairman of the Campaign for Press and Broadcasting Freedom is Loretta Loach, who works for Spare Rib. Both those organisations receive GLC money. Charles Landry was treasurer of the Campaign for Press and Broadcasting Freedom and a director of the Comedia Press, which also receives GLC money. Mike Jempson, a Campaign for Press and Broadcasting Freedom committee member, works for the GLC-founded GLEB. Your Lordships may say that with the GLC being phased out this will not happen in the future, but I think your Lordships are aware that organisations of this type are all too likely to be taken on, in same way as they now function, by other local authorities.
In the same way as companies have to register the names of their directors and the details of other directorships held by those directors, I suggest that publicly-funded groups should also be required to disclose the names of their officers and of other publicly-funded groups with which those officers are connected. It is only by those means that we can track down whether Clause 2(3) is being contravened.
In addition, the object of the amendment is that these organisations should, like companies, have to file their constitutions and accounts and give access to the public to other information which groups have submitted in support of their grant applications. The amendment also asks groups to name their other principal sources of funding to assist in determining whether they are likely to support a political party.
Lastly, any organisation which is in receipt of council funding, and is either funded for political purposes or is funded for some other purpose but engages in publicity, will be required to disclose that fact to a member of the public if requested. To keep track of all these activities it is essential to have public records of groups which are funded for publicity and groups which, though funded for some purpose other than publicity, actually publish material. It is only by having the comprehensive nature of Amendment No. 19B that one can keep a proper track publicly of whether the terms of the Bill, and in particular of Clause 2(3), are truly being adhered to. I beg to move.
Lord Denning: I hope your Lordships will not accept this amendment, because I suggest it is unworkable. The voluntary body or organisation with which I have been most closely connected is the National Marriage Guidance Council, whose fundings were mainly from the local authority. They came in a lump sum, such as £10,000, but there was no segregation into publicity or other purposes. No doubt some of their funds were used for proper publicity supporting the institution of marriage. One could not say that they had received money for publicity, but for their general purposes. It seems to me that one could not work this provision in relation to the innumerable bodies which receive money from local authorities because publicity is not separately itemised. I hope my noble friend will not press it.
Lord Underhill: The noble Lord, Lord Mottistone, in moving his amendment, did not refer to subsections (1) and (2) of the clause. Subsection (1) provides:
"A local authority shall keep a separate account of their expenditure on publicity".
Subsection (2) states:
"Any person interested may at any reasonable time and without payment inspect the account and make copies of it".
Despite the amendment which the noble Lord has moved, there already seems to be a considerable amount of information; otherwise, he could not have referred to all the grants that have been made to the various bodies.
What does the amendment mean by:
"must make available to the public"?
Surely, if subsection (1) and (2) mean anything the information will be there. Is it suggested that all this information should be detailed in a council minute; the whole of the constitution of a voluntary body or similar organisation which is receiving a grant—
Lord Mottistone: The amendment is calling upon the subordinate bodies, public bodies and voluntary organisations, which receive this money, to make public their own accounts. We are not seeking to add to what the local authorities have to do. That is why

881
the other part of subsection (1), which is already in the Bill, and subsection (2), are not relevant to this amendment. This amendment seeks to widen subsection (1) to call upon these other bodies—bodies of the nature of those of which I gave examples—to make public their constitutions, accounts and lists of officers. We are not seeking to add to the local authorities' requirements. I think the noble Lord believes we are.
Lord Underhill: I am glad that the noble Lord explained that, because I was assuming from his amendment that he was wishing the local authorities to make these details public. But there are still points which the noble and learned Lord, Lord Denning, has brought forward which make this amendment objectionable. I have no objection to any organisation making public what its aims are, but when we consider the details that are required here they include,
"accounts, constitution, lists of officers and the names of any other groups which share their offices".
That last item is surely going rather far. I am not suggesting that we should hide any insidious organisation which occupies someone else's office under some pretence, but to ask an organisation to detail any body to which it may sub-let its premises is surely going a bit too far. The whole of this amendment seems to be along that line.
Lord Boyd-Carpenter: May I ask my noble friend, when he replies, to clear up a point for me? It is not very clear, and it arises on the argument of the noble Lord, Lord Underhill. If a local authority, in order to secure publicity for political purposes, gives a sum of money to some either public body or voluntary body outside, is that gift of money caught by subsection (1)?
7 p.m.
Lord Broxbourne: I rise only for a moment to express some surprise at the misapprehension under which the noble Lord, Lord Underhill, laboured as to the effect of this amendment. I should have thought, and respectfully submit, that the drafting of the amendment is admirably clear. It is an amendment designed, as my noble friend has said, not to lay an additional burden on local authorities but to impose a perfectly reasonable obligation on bodies receiving moneys out of the public purse. In so far as such bodies have nothing to hide, then they have no reason to be apprehensive of this amendment.
Lord Elton: My noble friend has brought before your Lordships an amendment of which I agree the effects seem to be fairly clear and not to lay an additional burden on local authorities. It would require public bodies and voluntary organisations who received money from local authorities for publicity to make certain information available to the public. I must say that the kind of information which it might produce, if it is like that my noble friend produced—and I am much indebted to him for the fascinating expose he gave us of the ramification of bodies funded by the GLC—would be interesting for the public to see. But as I have described it, this is a narrowly framed amendment. However, I think it
882
raises general questions about ensuring proper accountability for local authority decision making and about the way some local authorities use their discretionary spending powers to fund what could well be described as peripheral and politically charged activities.
These are matters which the Widdicombe inquiry is still considering in the context of its main report. As you Lordships know, the committee is due to submit its main report this spring. I think we should be ill-advised to pre-empt that report by legislation in this field now. We will wish to consider the issues in the light of the committe's recommendations, but I should not wish to make any commitments at this stage in the relatively narrow field of local authority publicity alone.
It is arguable that grant aided bodies should be accountable, whether they are grant aided for publicity or for some other purpose. In that case it would be anomalous to make provisions of this kind only in the case of publicity grants. I can tell my noble friend Lord Boyd-Carpenter that the local authority have to include a grant in the account, but it will not be for party political purposes because of Clause 2, which will rule them out; so they will not get the grant, and it will not go into the account.
I should only add that I recognise that my noble friend's underlying concern is the nature of some of the groups that are grant aided by local authorities under their discretionary spending powers, including Section 137 of the 1972 Act. I have to say that the Government are concerned also in the same way about some recent funding. Our evidence to the Widdicombe inquiry very clearly reflects this concern. However, here again is a matter which is much wider than the narrow issue of local authority publicity which Part II of the Bill addresses.
I can assure my noble friend that the Government will very carefully consider any recommendations the committee of inquiry makes about the use of authorities' discretionary spending powers. We shall consider the need for further legislation in the light of what the Widdicombe inquiry's main report concludes. I think that that will be the right time and that my noble friend's enthusiasm, though well directed, is just fractionally premature, given that we share his interest and we will retain it until a later and I think more suitable opportunity, when we can direct it at a wider field than merely local authority spending on publicity. I hope he will feel able to await that date and withdraw his amendment.
Lord Mottistone: Yes, I can see the problem. It needs something as comprehensive, even to cover the narrow gap of publicity. Of course, I covered publicity because that is the nature of Part II of the Bill, and it is the nature of the title of Clause 5.
I see the point my noble friend makes. He almost said—perhaps he cannot say more—that there will be further legislation when Widdicombe makes his final report, and that this kind of matter will be included, possibly on the lines which I suggest. I do not know whether he can be a little more open on that.
Lord Elton: Well, I did; I almost said that.
Lord Mottistone: Well, with that almost reassurance I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Skelmersdale: In begging to move that the House do now resume, I should say that it is not proposed to return to this Bill until five past eight. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Incest and Related Offences (Scotland) Bill [H.L.]
Report received.

Marriage Bill [H.L.]
7.7 p.m.
Report received.
Lord Cameron of Lochbroom: My Lords, before the House proceeds further, it might be helpful at this time if I was to make known the Government's view on the extension of the Bill to Scotland.
As my noble friend Lord Davidson made clear at Second Reading, the Government's attitude to the principle of the Bill is one of neutrality, in keeping with the convention that issues such as those dealt with in the Bill should be left to personal conscience in the light of arguments advanced in debate. Having said that, I should also make clear that the Government take the view—whether or not Parliament decides that the changes proposed in the Bill are desirable—that it is preferable for there to be so far as possible consistency in the laws of marriage of England and of Scotland. This view is based upon the accustomed practice of keeping the laws of England and Scotland substantially compatible in respect of capacity to marry, having regard in particular to the movement of people between the two countries.
It is on account of practical considerations such as these, I would emphasise, as opposed to any departure from the convention of neutrality, that the Government undertook consultations in Scotland after the introduction of this Bill. These consultations were intended to ascertain whether, if the Bill was to be given the support of Parliament so as to change the law of marriage of England and Wales, if there was a consensus in Scotland in support of application also north of the Border. These consultations have now been concluded and indicate a general consensus among the churches and other bodies in Scotland in favour of maintaining consistency in the law of marriage between England, Wales and Scotland.
In the light of these consultations and the favourable reception which the Bill has been accorded in your Lordships' House, the Government consider that it would be appropriate and practical to extend the provisions of the Bill to Scotland. To this purpose I intend to table amendments to the Bill at Third Reading in your Lordships' house. I thought that your
884
Lordships would wish at this time to have notice of the Government's intention in this matter.
As I indicated during the Second Reading debate on the Incest and Related Offences (Scotland) Bill, if it is to be the view of Parliament that the principle of the Marriage Bill should be supported, it will be necessary also to amend the law of incest in Scotland so as to preclude the possibility of embarrassing inconsistencies in the law of marriage and in that relating to incest. However, these considerations and other questions of detail concerning application of the Marriage Bill to Scotland may probably be discussed to greater advantage at Third Reading.
Lord Meston: My Lords, before moving on to the amendments in the Marshalled List, may I thank the noble and learned Lord for that indication? I welcome the proposed extension of this Bill, should it become law, to Scotland. I accept that the drafting involved may not be entirely straightforward. There are differences in the legislation relating to marriage in Scotland and to marriage in England. One example which comes to mind is that in England you are only expressly prohibited from marrying your grandmother. In Scotland, they felt it necessary to prevent you from marrying your great-grandmother, which says something either about the Scottish climate or Scottish caution. I know not. I am grateful for that indication from the noble and learned Lord the Lord Advocate. I would hope also, having dropped a hint at Second Reading, to repeat that hint now that perhaps it might be felt appropriate and practical to extend this Bill to Northern Ireland as well.
Clause 1 [Marriage between certain persons related by affinity not to be void]:
Lord Meston Lord Meston moved Amendment No. 1:
Page 1, line 12, leave out ("at any time") and insert ("for any period").
The noble Lord said: My Lords, if I may, I shall speak also to the identical Amendments Nos. 10 to 15 inclusive and the consequential Amendments Nos. 5 and 18. This amendment proposes in effect a semantic change but a change which is perhaps of some importance. If I may remind your Lordships, it is a pre-condition of marriage between stepchild and step-parent under this Bill that the stepchild has never been a child of the family in the household of the step-parent who is to be married. The concept of "child of the family" is well known to the law and it is defined in this Bill in Clause 1(3).
The drafting of the Bill—and the drafting of this proposed amendment—was the product of a great deal of thought. It was realised that it was important to strike a balance between a period which is very short—indeed, too short to be a reason for preventing marriage—and a longer, but still relatively short period, which might give rise to what the law knows as a "child of the family" relationship. It is felt on further consideration that the expression "for any period" is probably preferable to the expression "at any time" in that "for any period" suggests something more substantial. It is on that basis that this modest amendment is proposed. I beg to move.
Viscount Davidson: My Lords, as your Lordships know, the Government are neutral on the main aims of the Bill; but I should like to say that so far as these amendments are concerned, we do not consider the use of the words, "for any period" in place of, "at any time" to be an improvement to the Bill. Does, for instance, "for any period" mean for "an appreciable period at any time before the younger party has reached the age of 18"; or does it mean for a "period no matter how long or short before the younger party has reached the age of 18"? If Lord Meston's intention is that a very short period of, say, no more than a week during which the couple lived as a family should not disqualify them from ever marrying, can he not perhaps specify the minimum period in the Bill rather than leave it to those who will have to interpret the Bill, if enacted, to decide what the minimum period should be? In view of the doubt about the effect of the words introduced by the amendment, perhaps the noble Lord, Lord Meston, might be prepared to consider the wording of the subsection before we come to Third Reading.
Lord Simon of Glaisdale: My Lords, it is very frequent when the Government are neutral on this type of Bill for the Government nevertheless to provide drafting assistance which a Private Member of either House very much needs. I hope that the noble Viscount will be able to say that drafting assistance in this sort of context would be available to the noble Lord, Lord Meston. If he can say that, may I respectfully suggest that the noble Lord might withdraw this amendment at this stage because it is the kind of amendment which can properly be made at Third Reading.
Lord Meston: My Lords, I am grateful to the noble Viscount and to the noble and learned Lord for their observations. The difficulties which we have faced with the wording of this particular part of this Bill have not been inconsiderable. I think that they go to show that reasonable people can differ reasonably about what certain words can mean. It is important that we get it right; it is important at the end of the day that the words in the Bill are a help and not a hindrance to those who have to interpret them. Whether or not the noble Viscount is prepared to give me the indication which was suggested just now, I am nevertheless at this stage prepared to withdraw the amendment. I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
7.15 p.m.
Baroness Seear Baroness Seear moved Amendment No. 2:
Page 1, line 15, after ("the") insert ("mother or").
The noble Baroness said: My Lords, with the permission of the House I should like also to speak to Amendments Nos. 3 and 4. This amendment is a modification of an amendment which was put to your Lordships at Committee stage and which was lost. It was to permit marriage between father-in-law and daughter-in-law, mother-in-law and son-in-law. In bringing this back in a modified form, I would point out to your Lordships that already there are three cases for Personal Bills coming before your Lordships' House, which means that it is not a very rare matter
886
that people in cases which are prohibited under existing law wish to get married. Of the three cases that are at present pending, only one could be dealt with if the legislation as it is at present worded passes through your Lordships' House and becomes law. That would leave two of the three pending cases to be dealt with by the procedure of a Personal Bill before your Lordships' House. This is a procedure which we all agree is very unsatisfactory.
As I understood the objection to the previous proposal, it was based on the argument that to permit marriage between father-in-law and daughter-in-law could give encouragement to erotic relationships within the family which could stimulate divorce between married partners inside the family circle. This was held by many people to be such a totally undesirable possibility that the law should prohibit it.
The amendments which I am now presenting to your Lordships' House avoid that difficulty and overcome that objection in that what is proposed is that marriage between father-in-law and daughter-in-law and mother-in-law and son-in-law should be permitted only where both the connecting spouses have died. That would mean that, before such a marriage was possible, the wife of the father-in-law and the husband of the daughter-in-law would both be dead. That being so, it seems highly improbable that the objection (of which a great deal was made last time) about the development of erotic relationships leading to divorce between married partners within the family circle could obtain if this amendment is passed. In view of the need to cut down as many cases as possible that have to use the Personal Bill procedure, I hope that your Lordships' House will feel that, as now presented, the proposal is acceptable. I beg to move.
The Lord Bishop of Birmingham: My Lords, when your Lordships were considering this Bill in Committee the noble Baroness, Lady Seear, gave what she called an olive branch to the right reverend Prelate the Bishop of Chichester and the noble Lord, Lord Meston, in making the suggestion which now formally appears as an amendment. The noble Baroness said she thought that her olive branch had been rejected. Happily, that is not the case. We have now had the time for which we asked to think about this suggestion. I am glad to say that the amendment will not be opposed from this Bench.
As a matter of fact, when the Bishops consulted we found ourselves divided. There are those who would wish to oppose this amendment, preferring a complete ban on marriage of all in-laws, while others of us (and I include myself) while not over-enthusiastic about the amendment would not wish to oppose it. The reasons for our luke-warmness or opposition are not hard to seek. In the first place, in such a marriage there would be a certain confusion of family roles, since a child may find that his grandfather has overnight become his stepfather and another may find that his grandfather has overnight become his uncle. We are anxious that family roles should be confused as little as possible and we think that is important for society as a whole.
Secondly, if a husband and wife become one flesh in marriage it might seem to some that for a man to marry his daughter-in-law is rather like marrying his daughter. Thirdly, and most importantly, we are told

887
that in other cases the distinction between terminating a marriage by death and terminating it by divorce is not recognised, so far as remarriage is concerned, in the eyes of the law. We are fearful that after a few years someone will come along and say, "If you can marry your divorced wife's sister you ought to be able to marry your divorced daughter-in-law as easily as you can marry a daughter-in-law whose husband has died". That really would endanger roles within the family and would open up possible erotic overtones of which the noble Baroness has just spoken. Indeed, I would agree not to oppose this amendment on the understanding that there is no question of that being proposed in this Bill. I hope the noble Baroness will assure us that she will be opposed to any further changes in this Bill that would facilitate marriages between a parent-in-law and a child-in-law.
Having made those three negative points, I do not wish to seem ungracious or ungenerous. Let me now be more positive and say why I would not wish to oppose it. If both the first marriages have been terminated by death—that is, in the case of the parent and the child when a widowed parent-in-law seeks to marry a widowed child-in-law—there can be no threat or damage to the relationship either of the extended family or of the two nuclear families; and as a grandparent in fact often acts as a parent towards his grandchild when his own child has died, I do not think there would be great confusion of roles. I see the force of the noble Baroness's argument, that if someone can marry his sister-in-law there is little logical ground for refusing to permit him to marry his daughter-in-law in this case.
However, I should like to add a word of warning. Let us not suppose that by agreeing to this amendment we are going to prevent all hard cases. Of course there will still be some that remain. What about a divorced parent-in-law marrying his widowed child-in-law when the parent was divorced five years before his child even got married? That would seem to me to be a hard case. Or what about the case of the child-in-law whose marriage was terminated by divorce five years before the parent-in-law became widowed? We must not think that we have got rid of all Private Bills by means of this amendment. Nevertheless, I would not wish to oppose it because there are surely some individual cases which merit our attention, such as are covered by the noble Baroness's amendment, even though in general some of us regard the good of the family in society as more important than individual cases. However, there are some, such as those covered by this amendment, which seem to be just.
Lord Denning: My Lords, may I add my support for the amendment? I am personally grateful that the right reverend Prelate is no longer opposing it. I always thought that the pass was sold, so to speak, when step-parent was allowed to marry stepchild. I gave illustrations earlier on. It seems to me that that situation is much more likely to lead to sexual rivalry than the in-law one. At all events, once the pass is sold and step-parent can marry stepchild after divorce or decease, it seems to me that, with in-laws, equally the parent-in-law ought to be able to marry the daughter-in-law, of course after the necessary divorce or decease. This amendment does not go nearly so far as
888
that. It only operates on the decease of both parents. It seems to me that this is a very welcome amendment and I am glad that it is no longer opposed by the Bishops.
Baroness Ewart-Biggs: My Lords, if I may say just one word in support of the intention of this amendment, I too am very glad that the right reverend Prelate is now satisfied. I look forward to hearing what the Minister has to say in answer to the very complicated and confusing examples that were given by the right reverend Prelate about which he was still not too happy. As the noble Baroness, Lady Seear, has said, there are examples before us right now where in-laws do wish on different occasions to get married. There is complete proof of this and we only have the very cumbersome system of the Personal Bill to deal with it at present.
I should like just to mention that in the minority report of No Just Cause it was clearly shown that the suggestion in the amendment of the noble Baroness was supported when they said that such marriages would not be opposed by them in principle if the intervening spouse were dead (I quote what they said),
"for then our concern about disruption within the family circle would lose some of its immediate force".
Of course that is entirely true: so I hope the Minister will see the amendment in this light and will consider it to be of practical help. The important part of it is that it will not endanger or disrupt the family circle, which is obviously the concern of all of us in regard to this Bill.
Lord Simon of Glaisdale: My Lords, the noble Baroness, Lady Seear, did not state with complete accuracy what the objection to her previous amendment in Committee was and what followed the objection to the majority report. If I may say so, I gave the example of divorce, the damage that is done and the misery that is caused over and above the normal misery that one gets when the relationship is between a father-in-law and a daughter-in-law. But I gave that only because that is the only situtation of which we have actual experience.
Here we are dealing with a world of hypothesis, and so the objection that was urged at that time really only amounts to this. The intrusion of erotic impulses into the primary family is liable to be destructive of that family and, for those who cherish the family as an institution, that is absolutely out. However, the noble Baroness rightly says that this would meet some of the cases that have been brought to our notice and that both the majority and the minority agreed that those sorts of cases should be met by a change in the law of affinity rather than by a parliamentary Private Bill.
7.30 p.m.
The noble Baroness, Lady Ewart-Biggs, quoted paragraph 274 of the minority report. I found it rather difficult to follow the committee's reasoning, because they went on after the point where the noble Baroness stopped, but I think their reasoning is this. The 1960 Marriage (Enabling) Act allows a marriage between a man and his divorced wife's sister. They said: "We do not like that." I share their dislike and I believe that the right reverend Prelate does. I see that he nods. I

889
really had no doubt about that. The point they are making is, I think, the same as the one to which the right reverend Prelate adverted; namely, that if we allow a marriage between a father-in-law and a daughter-in-law, the mother-in-law and the son having died, we may find ourselves pressed, as we were pressed in 1960, "Why not, if one of the intervening spouses has been divorced?" That, I think, is the argument and it is a cogent argument.
I am bound to say that, weighing all the advantages, I have to take into account on the other side that the Church representatives were very weak in 1960, as they were again very weak in 1969. The disastrous Divorce Reform Act 1969, which has led to this momentous break-up of marriage which has been so frequently deplored both on this Bill and on the Shops Bill, owes much, I am bound to say, to the fact that the Bench of Bishops and other Church leaders did not step in firmly and state their objections. On the contrary, with the document Putting Asunder they, if anything, encouraged that situation.
However, having said that, and having heard the right reverend Prelate the Bishop of Birmingham say that on this issue they are absolutely firm, that there is to be no extension—and I hope that the noble Baroness, Lady Seear, will be able to assure us that she, at any rate, will seek no extension—what we are left with then is the argument of the thin end of the wedge. I have never been very encouraged by that sort of argument. A very wise statesman once said:
"The British constitution is full of the thin ends of wedges which the good sense of the public refrains from driving home".
So, although there is a danger in what the noble Baroness has said, and although she has undoubtedly proved that there is a case to be met and that this is one way of doing that, on the whole, with the perfectly firm assurance of the right reverend Prelate speaking on behalf of the Church, I myself feel that this is an amendment which should be accepted.
Viscount Davidson: My Lords, the noble Baroness, Lady Ewart-Biggs, seems to think that the Minister is expected to answer the points raised in debate, but I must remind her that this is a Private Member's Bill and that the Government's view remains one of benevolent neutrality. The Minister's job, in my view, is to express the Government's point of view.
So far as this amendment is concerned, it is a substantive point and the Government remain neutral. It is up to your Lordships to decide whether the change proposed by these amendments is in the best interests of the parties concerned and of society at large. But I must admit that we are not altogether happy with the lack of precision in the amendment, particularly in the use of the word "connected". Without in any way departing from the position of neutrality, I wish to ask the noble Baroness, Lady Seear, about the aim of these amendments.
I assume that it is that, for example, a man whose wife has died can marry their deceased son's wife, though he could not do so if his wife was living but divorced from him, or if their son was living but divorced from his wife, or both. If so, I am not sure whether the noble Baroness's amendment to line 18 would produce only this result.
890
For instance, it could happen that a man divorced his first wife and had a son by a second wife who then died. If the son took a wife who was connected—and I use the noble Baroness's word advisedly—in some way with his father's divorced first wife and the son then died, the noble Baroness is surely not saying that the father would have to wait for his divorced first wife's death until he could marry his deceased son's wife. Perhaps the noble Baroness would like to consider this point—if not now, before the next stage of the Bill.
Baroness Seear: My Lords, I fully admit that this may not be a perfectly drafted amendment. As has been pointed out, Private Member's Bills do not have the full help of a parliamentary draftsman. Although I really did not follow the full party list-like combinations which the noble Lord put forward, I can see that there might be some misunderstanding in the wording, though I think there is no misunderstanding at all in your Lordships' House about the intention.
The intention, as I think everybody has fully understood, is that marriage is not possible between the parties mentioned, unless the spouses in the cases of both people who propose to get married are dead. I think that is quite clear to your Lordships. If the House accepts this amendment this evening, perhaps a further amendment could be introduced at Third Reading in order to improve the drafting.
After listening to the debate this evening, I can, of course, assure the right reverend Prelates that there is no intention of extending this further, at any rate so far as this Bill is concerned. What may happen later is another matter. I very much go along with the noble and learned Lord, Lord Simon of Glaisdale, who pointed out—I have often reflected this myself—that the thin end of the wedge metaphor is a singularly unfortunate one, because it implies that all wedges more or less slip in by themselves, which is not at all my experience of wedges, and, in fact, it needs positive action to take the matter any further.
Having got this far, if your Lordships' House decide right through the future that you do not want it to go any further, no further will it go. It will not slip in unperceived. So nobody is committing himself to anything at all, except this very modest extension that, in the event of the death of both spouses, marriage will not be impossible.
I entirely accept the arguments about the importance of the family, but I sometimes think that we lose sight of what the majority report termed the "liberty to marry", which is inherent in human nature. What we are proposing is that if two people very much want to get married, and to make a good marriage and a good family, there have to be very strong reasons indeed for obstructing that wish. We all know that there are far too many unhappy marriages around. If we can further a few happy ones, we will surely have done something which is very worthwhile. I very much hope that the House will accept these amendments.
Lord Meston: My Lords, I thank my noble friend for giving fair warning of these amendments at the Committee stage. We have been able to consider them long and hard in the intervening period, and I should say now that I am prepared entirely to accept the principle of this amendment.

891
The problems that can be envisaged when one or both of the former spouses of the couple to be married are still alive do not exist when both intervening spouses are dead. At Committee stage perhaps time did not permit one to explain the problems, certainly as I envisage them, when both the spouses are still alive. One can take a typical example. A young couple marry. They may go to live with the parents of, say, the young husband. There may be a weak, immature, perhaps teenage daughter-in-law who may be very vulnerable to the influence of her father-in-law. There is a situation of proximity and dependency. If a relationship did develop between the young husband's wife and his father, there are two subsisting marriages which potentially would be ended by divorce.
As the noble and learned Lord, Lord Simon, said, with his great experience, and I can echo with my lesser experience, there is nothing more painful than a divorce in that kind of situation. There is a great alienation and distress. The father would divorce his son's mother to marry his son's wife. It would be worse if the young couple had produced children. The children would probably stay with their mother after the disintegration of the family which I have just suggested. The grandfather would be marrying the children's mother. The alienation and upset could well be so profound that all contact between the children and their natural father and between the children and their grandmother would be completely severed. The grandmother herself would have lost her husband and lost her daughter-in-law and may well have lost meaningful contact with her grandchildren.
Those problems in what might be described as a fairly extreme but not an unlikely example would not arise if both the intervening spouses were already dead. But nevertheless—and I am grateful to the right reverend Prelate for reminding us of this—the children would still have to adjust to the situation, and that adjustment and the need for it should not be underestimated. As I have said before, if I may remind the House, in the course of this Bill, our whole law of adoption, to take one example, strains itself to avoid the distortion of family relationships. The minority report in No Just Cause conceded that it would like to propose what my noble friend proposes in this amendment but the minority decided against. Their reasons for so doing are set out in paragraph 274, and I am bound to say that I find them questionable, both in law and in logic. It is not perhaps the strongest part of an otherwise strong and cogent report.
The "thin end of the wedge" argument has already been ventilated by your Lordships. I would not wish to add anything save to say that it took more than 50 years to extend the liberty to marry one's deceased wife's sister to the liberty to marry one's divorced wife's sister. The suggestion that there is a thin end of the wedge therefore possible in this situation I would beg to doubt. I am by no means sure that marriages between in-laws of the same generation—between brothers and sisters-in-law—are in the same category and throw up the same difficulties as marriages between in-laws of different generations.
As the noble and learned Lord, Lord Simon, has said, in this instance today the Bench of Bishops have
892
made it quite clear that they would draw a very firm line on any further extension, but this amendment has the welcome advantage that it will mean a few less Personal Bills. It is quite right that if this situation were simply left to the Personal Bill procedure, they would almost all get through. Accordingly, I willingly support and accept the amendment, subject perhaps to certain drafting improvements at a later stage.
On Question, amendment agreed to.
Baroness Seear Baroness Seear moved Amendments Nos. 3 and 4:
Page 1, line 17, after first ("his") insert ("son or").
Page 1, line 18, at end insert ("provided that, in the case of both parties, any former spouses through whom the couple are connected are deceased.").
On Question, amendments agreed to.
Clause 2 [Marriage according to rites of Church of England or the Church in Wales]:
Lord Meston Lord Meston moved Amendment No. 6:
Page 2, line 16, after ("Marriage") insert ("(Prohibited Degrees of Relationship)").
The noble Lord said: My Lords, perhaps I may speak at the same time to the identical amendment, Amendment No. 8. This amendment seeks a modest and more accurate Title for the Bill. It seeks to be more accurate and to define it as the Marriage (Prohibited Degrees of Relationship) Bill, one advantage of which is that it will more clearly differentiate this Bill from the Marriage (Wales) Bill which is presently travelling through your Lordships' House. I beg to move.
Viscount Davidson: My Lords, as the noble Lord, Lord Meston, has said, this amendment seeks to make the Bill more immediately distinguishable from the Marriage (Wales) Bill, which is also going through its stages in Parliament at this time. We have no objection to the amendment.
On Question, amendment agreed to.
Clause 3 [Amendment of s.3 of Perjury Act 1911]:
Lord Meston Lord Meston moved Amendment No. 7:
Page 2, leave out lines 25 to 29 and insert—
("(d) with respect to a declaration made under section 16(1A) or 27B(2) of the Marriage Act 1949—

(i) enters a caveat under subsection (2) of the said section 16, or

(ii) makes a statement mentioned in subsection (4) of the said section 27B,

which he knows to be false in a material particular,").
The noble Lord said: My Lords, the purpose of this amendment is to improve the drafting of the new offence created by Clause 3 of the Bill. It produces an offence which is more specifically delineated and removes an unnecessary reference to attempted offences which are already covered by another statute. I beg to move.
Viscount Davidson: My Lords, in our opinion this amendment provides an improved formulation of the offence set out in Clause 3. The essence of the offence lies in knowingly making a false allegation rather than in causing a particular result. If your Lordships accept

893
that it is appropriate to create such an offence in this context, I would ask your Lordships to support the amendment.
On Question, amendment agreed to.
Clause 5 [Short title, citation, commencement and extent]:
Lord Meston Lord Meston moved Amendment No. 8:
Page 2, line 35, after ("Marriage") insert ("(Prohibited Degrees of Relationship)").
The noble Lord said: I have already spoken to this amendment in the context of Amendment No. 6. I beg to move.
On Question, amendment agreed to.
Lord Meston Lord Meston moved Amendment No. 9:
Page 2, line 36, after ("1983") insert ("and the Marriage (Wales) Act 1986").
The noble Lord said: My Lords, the Marriage (Wales) Bill has now been through all its stages in another place and has received a Second Reading in your Lordships' House. Accordingly, as I understand it, and by convention, it is now proper to refer to that legislation in this Bill. It is for that reason that Amendment No. 9 is proposed. I beg to move.
On Question, amendment agreed to.
In the Schedule:
[Amendments Nos. 10 to 15 not moved.]
Lord Meston Lord Meston moved Amendment No. 16:
Page 5, line 10, after ("may") insert ("enter notice of the marriage in the marriage notice book and may").
The noble Lord said: My Lords, I shall speak also to Amendment No. 17. Amendment No. 16 is a somewhat technical but necessary amendment. As drafted, the Bill in its present form might appear to short-circuit an essential pre-requirement for civil marriage; namely, the entering of notice. It is to correct that omission that both amendments are proposed. I beg to move.
Viscount Davidson: My Lords, this amendment improves the procedural arrangements under the Bill by making it clear that the superintendent registrar should have power to enter a marriage in the marriage notice book in cases where the couple seek a declaration from the High Court successfully but have not first made a declaration to the superintendent registrar himself. The Government therefore support this amendment.
On Question, amendment agreed to.
Lord Meston Lord Meston moved Amendment No. 17:
Page 5, line 11, leave out ("notwithstanding that no") and insert ("whether or not any").
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
[Amendment No. 18 not moved.]
Baroness Hooper: My Lords, I beg to move that the House do now adjourn during pleasure.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.52 until 8.5 p.m.]

Local Government Bill
House again in Committee on Clause 5.
Lord Elliott of Morpeth Lord Elliott of Morpeth moved Amendment No. 20:
Page 4, line 13, at end insert—
("(5) The Secretary of State, consulting such associations of local authorities as appear to him to be concerned and any local authority with whom consultation appears to him to be desirable, may specify in a direction those categories of publicity which a local authority does not need to include in the account referred to in subsection (1) above.").
The noble Lord said: This is a probing amendment and it is fair to say that it raises technical issues rather than questions of principle. However, the issues are of considerable importance to those who work in local government, and consequently I should like to know the Minister's views.
The amendment proposes an addition to Clause 5. As your Lordships know, this is the clause which makes provision for each local authority to keep an account of its expenditure on publicity. It is a provision with which I wholly agree and support. It must be right to put an end to the position in which we find ourselves at present where most local authorities do not even know how much they spend on publicity, let alone seek to account to the public for the way in which the money has been spent. Nevertheless, I believe that we must take care to ensure that in seeking to cure a problem in local government we do not go beyond the practical requirements of public accountability.
I understand why the definition of "publicity" is wide in the context of the prohibition of party-political propaganda. The range of material we have seen used by some authorities is extensive and it includes some techniques that are very new to the local government publicity scene. I referred to some of those techniques which are being practised by, among other authorities, the Tyne and Wear County Council when we considered Clause 2.
My concern is that the clause in its present form would in effect require authorities to include within a separate account spending on the whole of this wide range of material. At present the account would include all publicity expenditure, defined as it is in Clause 6 as,
"any communication, in whatever form, addressed to the public at large or to a section of the public".
I can, as I have already said, fully understand why the definition is wide. We have sought throughout our proceedings to avoid the loopholes which unscrupulous local authorities could exploit for party political advantage, and that is what we are seeking to avoid. However, I question whether the definition of "publicity" needs to be quite so wide for the purpose of keeping a publicity account.
As provided for by Clause 5 at the moment, local authorities would be required to include in their account expenditure on items such as a circular letter from a headmaster to the parents of his pupils. I have been told that it is possible for a floral clock in the municipal park also to fall within the definition. I can just imagine the odd local authority which might even include in some way a floral clock for the purpose of party propaganda. However, I suggest that there is a case for defining more closely the parameters of the publicity account. It does not seem to me that the inclusion of essentially peripheral items will be of any assistance in terms of ensuring local accountability for spending on publicity. That is what we believe to be the purpose of Clause 5. If there is no means of setting commonsense limits to the publicity account, there must be a grave risk that proper accounting practices may be distorted and unnecessary and very costly administrative tasks imposed on local authorities.
Therefore, to summarise, whereas we want an all-inclusive definition of publicity for the purposes of party political prohibition, surely it is unreasonable to be exhaustive in trawling a boat through local authorities' expenditure looking for items of expenditure on publicity which are minute. In my view there is a strong case for excluding peripheral and minor items from the account. I should therefore be very grateful indeed if the Minister could give me some assurances on this matter and would comment on my proposal. My proposal does not suggest any specific exclusions from the account but would give the Secretary of State the power to make such exclusions after consultation with local authorities. I beg to move.
Baroness David: I think that this is an interesting amendment. It shows an awareness of the problems which local authorities are facing when they have to prepare for this Bill becoming an Act. Neither we nor the associations oppose the principle of local authorities being accountable for their actions.
Widdicombe suggested that local accountability could be enhanced by separate accounting arrangements for pubilicity expenditure. The same method of accountability already exists in relation to expenditure incurred under Section 137. I understand that the associations are content with the specific requirements of Clause 5. What concerns local government is the practicality of the proposals.
In coming to a view on the principle of what has become Clause 5, Widdicombe stated in paragraph 202:
"The conclusion we draw is that it is feasible separately to account for publicity expenditure provided that some definitional guidelines are established. The task might be more difficult if it applied to expenditure under section 111 … as well as section 142".
On balance though, Widdicombe came down quite firmly towards what appears to be the Government's view in Clause 5:
"In principle, we believe that all expenditure on information and publicity activities should be clearly accounted for, even though there might be greater technical difficulties in the case of service-related expenditure under section 111".
That is from paragraph 204.
But the view of the local authority associations is that both Widdicombe and the Government have
896
under-estimated the practical difficulties involved in accounting for expenditure, particularly in the absence from the Bill of definitional guidelines. Widdicombe began to recognise the problem by considering whether Section 111 publicity should be within the account. Such publicity would be that which was incidental to the delivery of services.
The associations agree that accountability is better served by not excluding such incidental publicity. The major difficulty that this clause will cause local authorities comes from the very broad definition of publicity in Clause 6(3); that is
"any communciation, in whatever form, addressed to the public at large or to a section of the public".
The Committee should consider first just what such a definition could include: statutory notices in respect of planning matters—highways, notices of audit accounts and so on—all the things which seem always to fill a page or two of any local newspaper; communications sent to parents of schoolchildren, which the noble Lord has mentioned; prospectuses of schools; letters to council tenants; letters to residents; posters giving details of refuse collection over bank holiday periods; staff advertisements; invitations to tender for contracts; committee and council papers—particularly given their wider availabilty under the Local Government (Access to Information) Act 1985; painting of council vehicles with corporate identity logos, et cetera. The breadth of the definition of "publicity" will cause problems.
Accounting systems are not geared up to provide information which is as detailed as this. Take the example of a school head who decides to send a letter (or any communication) to the parents of the school's pupils, which is a section of the public. That letter would be produced on school paper which has already been charged to the school as "educational supplies". Does that head then have to notify the LEA treasurer's department that the cost of one ream of paper is to be debited to "publicity" and credited to "educational supplies"? And should the school also have to include school office staff time? Recent case law on Section 137 indicates that staff time would have to be charged to publicity even if no extra staff expenses were incurred.
8.15 p.m.
This problem was raised in another place. An amendment in Committee attempted to restrict the separate account to publicity covered with the code of practice under Clause 4. In rejecting the amendment, Mr. Waldegrave said:
"It would be inappropriate for the code to narrow the coverage of the account that is laid down in the Bill".—[Official Report, Commons, Standing Committee A, 19/12/85; col. 400].
In his rejection, Mr. Waldegrave did not really address the serious practical difficulties that this clause presents. The amendment of the noble Lord, Lord Elliott, was, he said, a probing amendment, but it would provide a means of remedying the situation. We ask the Government to give consideration to the difficulties which are likely to be faced by local authorities and to accept the amendment, and then talk to local government so that the principle of accountability for publicity expenditure is not carried ad absurdam. I hope very much that the Minister will

897
feel able to accept this amendment, which would give a great deal of help to local authorities in carrying out their duties under this Bill when it becomes an Act.
Lord Skelmersdale: I am grateful to my noble friend Lord Elliott of Morpeth for raising this issue. I agree, perhaps for the first time this evening, with the noble Baroness, Lady David, that this is an interesting amendment. But I should perhaps put it in the context of Clause 5, which requires local authorities to keep a separate account of their expenditure on publicity and which makes an important step toward accountability in local authorities' publicity spending.
At present, as Widdicombe made clear, few if any local authorities keep a separate centralised record of all expenditure on public information, advertising and consultation activities. As a consequence, the inquiry was unable to make a firm estimate of the total amount of local authority expenditure on publicity. This clause will rectify this worrying state of affairs. As to the scope of the word "publicity" there is an amendment, No. 23, still to come which will explain the position to what I hope will be the satisfaction of the whole Committee.
The Widdicombe inquiry recognised that authorities might none the less face some technical difficulty in including some expenditure in an account. However, they believed that in principle all expenditure on information and publicity activities should be clearly accounted for despite these difficulties. They believed, and the Government accept this, that the overall level of publicity expenditure by a local authority was a matter of legitimate public concern. This is why we have proposed the account provided for in Clause 5, and I have to say that the professional accounting body, CIPFA, considers that the Bill as drafted should present local authorities with no insuperable problems.
However—and this is where I come to my noble friend's amendment—it has been represented to us that such a definition of publicity may not be entirely suitable for application to the publicity account, on grounds which are very much the same as those which my noble friend and the noble Baroness, Lady David, outlined in their speeches. We should certainly not wish local authorities to have to engage in unnecessary effort and expense in including in the account more marginal elements of publicity expenditure that had no clear relevance in terms of public accountability—for example, regular circulars by schools to parents of schoolchildren in their care, and I am thinking particularly of one that I had the other day on sex education.
I can see that there may be cases where the inclusion of some items of expenditure in the publicity account would involve disproportionate expense—cases where the amounts involved are very small and/or accounting systems are very devolved As has been said, an example might be that of a school's expenditure on circular letters.
I accept the principle behind my noble friend's amendment that it would be sensible to take a reserve power to make specific exclusions from the definition of expenditure required to be included in the publicity account. We would, as his amendment proposes, wish to consult in detail with local authority representatives
898
before making such exclusions, including, as the noble Baroness said, incidental publicity.
I also consider that, as the amendment proposes, a direction by the Secretary of State is the most appropriate vehicle for making such exclusions. These are technical matters, and we would wish to retain the element of flexibility which a direction would allow. We might wish to alter the form of exclusions in the light of experience in keeping the account. For instance, if types of publicity which had traditionally been uncontroversial became used for controversial publicity or took on a greater prominence, it might in certain circumstances be appropriate to ensure that they were not excluded from the account.
If my noble friend agrees, I would ask him to withdraw his amendment so that we can consider it fully and produce a properly drafted amendment on Report to cover the points to which he, the noble Baroness and myself have alluded.
Lord Elliott of Morpeth: I am extremely grateful to the noble Baroness for her comments on the amendment that I have proposed. I have listened to my noble friend who, as he said, accepts the principle embodied in the amendment. He has made me feel quite happy that the matter will be looked at carefully in the future, as it was a probing amendment. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 agreed to.
The Deputy Chairman of Committees: Amendment No. 21, the Lord Chalfont. Lord Mottistone?
Lord Broxbourne Lord Broxbourne moved Amendment No. 21:
After Clause 5, insert the following new clause:
("Proceedings against local authority.
.—(1) Any elector or ratepayer in the area of a local authority may institute proceedings in the County Court or High Court against that authority in respect of a breach of any part of this Act.
(2) Proceedings may be instituted against any local authority for failing to make a rate as required by section 1 of this Act, or for publication or threatened publication of material contrary to section 2, or for disposal of an interest as mortgagee prohibited by sections 7 and 8.
(3) No order for costs may be made against any person instituting such proceedings unless the court is satisfied that the action was vexatious.").
The noble Lord said: It is following that introduction, with feelings of more than usual inadequacy, that I rise to move the amendment standing in the distinguished name of the noble Lord, Lord Chalfont. Unfortunately for us, he is unable to bring to your Lordships' Committee this evening his sage counsel and wise guidance from which we always profit so much. He is usefully, agreeably, and perhaps one might say enviably employed in warmer climes. Your Lordships may feel inclined to say O si sic omnes!
I am, however, a little comforted and encouraged from my feelings of personal inadequacy by the merits of the new clause which I am commending to your Lordships. Its merits are indeed so clear as to require no advocacy, fortunately no doubt. They should at one

899
strike a responsive chord in all right-thinking people. In that category I hope to include my noble friends the Ministers and the noble and learned Lords who are sitting at this time on the Opposition Front Bench. It would indeed be a sad moment for me to have to excise them from the category of right-thinking people because of any misguided opposition to the amendment.
Lord Elwyn-Jones: You ain't heard nothing yet!
Lord Broxbourne: I did not hear the intervention of the noble and learned Lord. Perhaps it was as well.
Lord Elwyn-Jones: I merely said, "You ain't heard nothing yet!", in the best parliamentary language.
Lord Broxbourne: In those, I shall not say happier, but more lucrative, days when the noble and learned Lord and I used to have exchanges in another context he was wont to express himself, if I may say so, in a more grandiose and dignified way which wholly became him.
The merits of the new clause are clear. It is concerned with enforcement of the law and is therefore of great importance. It is a truism that law, however well-intentioned, is only effective and meaningful in so far as it is enforceable. It follows therefore that those entrusted with the formulation of our laws should have close regard to their enforceability and should ensure that appropriate provisions are in operation when the legislation reaches the statute book. The question therefore arises: Does the Bill as at present drafted satisfy that requirement? In my submission the answer is, regretfully, no, or at any rate not in all respects.
May I draw attention in that context to the contrast between two clauses of the Bill, a contrast as strange as it is striking? Clause 5(1) requires local authorities to keep separate accounts of expenditure on publicity, a very proper requirement. Subsection (2) gives a right of inspection to the citizen, again a very proper requirement. Subsection (3) provides for enforceability to protect the exercise of the citizen's right. Clause 5 follows the normal and proper practice of providing for enforceability of its statutory provisions. But in Clause 2, an even more important clause, there is no provision for enforceability. That, I submit, is a clear and regrettable omission.
Because of that omission only the private citizen on his own initiative in the public interest can enforce the law. Subsection (1) of our proposed new clause gives him that right in clear and unequivocal terms. Any elector or ratepayer in the area of a local authority may institute proceedings in the county court or High Court against that authority in respect of a breach of any part of that Act. It is a right which is enjoyed and recently bestowed in the Local Government (Interim Provisions) Act 1984 and the Local Government Act 1985. It is therefore a desirable provision and one with respectable precedents.
But it is also essential that citizens to whom alone the enforcement of the law is entrusted should not be deterred from serving the public interest by apprehension of incurring financial penalty thereby. We seek to
900
meet that point by subsection (3) of our proposed new clause:
"No order for costs may be made against any person instituting such proceedings unless the court is satisfied that the action was vexatious".
8.30 p.m.
This provision is in line with modern thinking in regard to costs. The principle that costs follow the event, if not more honoured in the breach than in the observance—that would be over-stating the case—is now at any rate considerably modified, as noble and learned Lords will know. For example, there is no award of costs against an unsuccessful litigant who enjoys legal aid. There is no award of costs against such a litigant in industrial tribunal cases. There is no award of costs in claims made in the small claims court. Would not the proceedings brought by a private citizen in the context of this Bill, he alone having the opportunity and the responsibility for enforcement, as I have said, be in consimili casu with those other precedents?
I submit that this saving provision in our proposed new clause as to protection against a deterrent award of costs is in line with current thinking and common sense. I hope, as I said at the beginning, that Ministers will be able to accept the amendment or at least promise sympathetic consideration of the principle embodied therein. I beg to move.
Lord Silkin of Dulwich: I am accustomed to the honeyed words of the noble Lord, Lord Broxbourne, both here and in other tribunals where I have had, sometimes the misfortune, sometimes the good fortune, to oppose him. On this occasion, I am afraid that I have to exclude myself from the category of right-thinking Members of the Committee, as defined by the noble Lord, and also possibly by the noble Lord, Lord Chalfont, whose amendment this is and who is doubtless encouraging our representatives in another sphere, a more sporting sphere than that covered by this legislation at the moment.
There are two reasons why I would oppose this new clause, the first being that it is unnecessary and the second that it is undesirable. It is unnecessary because while I of course accept (and I am sure we all accept) that there must be provision for ensuring that a law that is passed by Parliament is enforced against those who break it or those who threaten to break it, that situation will exist irrespective of whether or not this clause becomes part of the Act.
There are two ways in particular whereby enforcement can take place. First, those who act out of accord with the legislation, whether under Sections 1, 2, 7 or 8, will be acting outside the powers of the local authority concerned. Accordingly, there will be the normal remedy of surcharge and, if necessary, disqualification against those who cause a local authority to incur expenditure that is in excess of its powers. That is not the only means by which the Act can be enforced. I need not tell the noble Lord, because he is very well aware, that there is also the relator action that can be brought with the consent of the Attorney-General to restrain among others local authorities who are committing, or who are threatening to commit, a breach of the law.

901
The noble Lord will know much better than I do the passage in which this is explained. It appears in Halsbury's Laws of England, volume 37, at paragraph 230, which, as I happen to have it handy, it is perhaps worthwhile referring to for the benefit of those who are not so familiar with the mysteries of the relator action as the noble Lord, Lord Broxbourne. It says:
"A relator action is one brought to restrain interference with a public right, whether committed or threatened, or to compel the performance of a public duty or to abate a public nuisance, and in such an action the Attorney General is a necessary party. The action is brought in the name of the Attorney General at the relation of the person or body seeking to prevent the commission or continuation of the public wrong. Although he is the nominal plaintiff, the Attorney General is not deemed to be a party to the proceedings, so as to be liable for costs, but the relator is liable for costs".
I shall come to the point on costs in a moment.
The paragraph goes on to say:
"The Attorney General is a necessary party in a relator action because he is the person recognised by public law as entitled to represent the public in a court of justice and he alone can maintain a suit ex officio or ex relatione for a declaration as to public rights. In this respect his jurisdiction is absolute and the court has no power to review his decision".
There is an exception to that rule where someone is seeking to restrain interference with a right where the plaintiff has some personal direct interest but not simply as a ratepayer or as an elector, the words of the clause. The principle that the Attorney-General should have control over proceedings of this kind is one that has been adhered to for a very long time, as the noble Lord knows. It has been fairly recently reinforced by the Judicial Committee of your Lordships' House in the case of Gouriet, as some noble Lords may recall. It is extremely important, in my view, that the principle behind the Attorney-General's right and indeed duty to uphold the public interest, not for any party political reason, but in the interests of the public generally, should be adhered to. I see no reason whatever why this particular case should be made an exception to that general rule. The noble Lord has not explained to the Committee why he suggests that this should be so.
I say that it is not only unnecessary but undesirable. I submit to the Committee that it is undesirable just because it takes this particular subject matter outside a rule that has been hallowed by practice and that is well understood and puts it into a special category in respect of those who could not normally sue themselves, both electors and ratepayers. I am not certain, incidentally, why an elector as distinct from a ratepayer is included. Nonetheless, that is what is proposed. Any one of those, elector or ratepayer, will, without the consent of the Attorney-General, be entitled in this one case to institute proceedings. I find it difficult to understand why this should be so, why such an exception should be made. I suggest that it is highly undesirable that this legislation should be singled out in that way.
Similarly, when one comes to subsection (3) of the clause, one finds a very unusual provision, one that I cannot recollect having seen elsewhere, with regard to costs: a provision that plainly is intended or would be calculated at any rate to encourage persons who are electors or ratepayers to take proceedings, if this clause became law, in every case short of the case where it could be said that the action is vexatious. I can see no possible reason for that.
902
The court, if this provision became law, would have the normal power of the High Court or county court to deal with costs within its discretion. It would take into account all the matters which induced the litigant to bring the proceedings and, if it were in accordance with justice that no order for costs should be made against him, then the court would so order. The noble Lord's advocacy of subsection (3) would appear to be an advocacy casting grave doubts on powers of discretion of the courts to deal with these matters in an equitable way.
In his opening remarks the noble Lord compared the provisions of subsection (3) of Clause 5 and suggested that this clause would be in similar state. However, subsection (3) is a criminal provision. It is aimed at those who illegally obstruct somebody in the exercise of the rights conferred by the section to inspect the account which is specifically given to the public. Any person interested may inspect the account. Subsection 3 says that anyone who wilfully or intentionally obstructs such an exercise of rights will be committing a criminal offence. That is a very different situation from that envisaged by this clause. There is no question of obstructing a private individual who wishes to exercise his rights. We are not here dealing with a criminal penalty but some kind of civil procedure, the precise nature of which is not wholly clear from the clause but which, I take it, is intended to enable the plaintiff to obtain either an injunction or perhaps a mandatory order; I assume not a declaration because that would not normally be granted.
I come back to the point that the clause is not necessary, and that it is ill-advised in making distinctions in relation to this legislation where the customary procedure has been hallowed by time. I hope that the Committee will not accept the new clause.
Lord Mottistone: Perhaps I may speak to my amendment as well and answer most of the points raised by the noble and learned Lord, Lord Silkin. I appreciate that he has been an Attorney-General and therefore knew a lot about what that involved.
Perhaps I may make two points. The first is with regard to the question: why the elector or ratepayer? My noble friend Lord Broxbourne made the point that there is provision in the Local Government (Interim Provisions) Act 1984 and the Local Government Act 1985 to empower electors to go to court against breaches of those Acts. There is also such power in Section 91 of the 1972 Act. There is therefore considerable precedent for electors.
Your Lordships may ask: why ratepayers? The answer is that, as I see it, this Bill is designed to protect the ratepayer against misuse of his money because he is the one who is paying the rates. It therefore seems only reasonable that he too should have special provision made for him.
The noble and learned Lord, Lord Silkin, asks why should there be subsection (3)—implying that costs in the ordinary course will not be made against a person instituting such proceedings. The answer to that is that there have been good examples and I can quote two of them to the Committee where, under the other legislation that I have quoted, people have been

903
put off taking their councils to court for just that reason—that they cannot risk the costs.
For example, last year Hackney ratepayers were advised by a leading firm of solicitors that Hackney Council was breaking the existing law with its publicity campaign. A barrister was ready to take the case. They were ready to meet their own costs from their own money but they were frightened off because had they lost the council's costs would have been crippling.
8.45 p.m.
I give another example. Some years ago a group of councillors on Wandsworth Council decided to sue that council. The Labour controlled council instructed its officers to fight the case as hard as possible. Again, these councillors had to abandon their action. They subsequently came to power in Wandsworth and were able to see the papers. They discovered that the council had been advised by counsel that they would lose the case and had only ordered officers to fight it in the hope that the plaintiff councillors would be thus deterred by the risk of costs—which of course is what happened.
It is therefore for those kinds of reasons that we need something like subsection (3). We need something like this new clause to provide the protection that the ordinary elector and ratepayer requires in order to protect (in the case of the ratepayer) his money from being mis-spent in the terms that this Bill seeks to provide.
I trust that I have answered the points that the noble and learned Lord, Lord Silkin, sought to put before the Committee and that you will agree that there needs to be something similar in the Bill to provide the protection which the ordinary person requires to implement the purposes of this Bill.
Lord Campbell of Alloway: I support most of what my noble friend Lord Mottistone has said, particularly with regard to costs. I hope that my noble friend the Minister will consider again at leisure where the justice lies in this situation, having regard to the examples—which are but a few—which my noble friend Lord Mottistone has given.
I hope that the clause as it stands, would not be put to a Division. In its present form it raises certain difficulties. My noble friend Lord Broxbourne referred to this as being requisite as an adjunct to the enforceability under Clause 2 which is Part II of the Bill. I see the force of that point. However, I wonder, with the greatest respect, whether it is a necessary adjunct to enforceability under Part I or Part III—the setting of the rate or the mortgages. I should have thought, having listened with great attention to everything that has been said in this debate, that there is something to be said for limiting the incidence of the clause as an adjunct to enforceability under Clause 2 and leaving enforceability under Part I and Part III to the very type of relator action to which the noble and learned Lord, Lord Silkin, referred.
However, I must not take time at this hour of night. I think that there is something in the spirit of this amendment that is worthy of consideration but I could not vote for it in its present form and I hope that it will not be pressed.
Lord Morton of Shuna: As a Scot I find this new clause rather difficult to understand because in Scotland we do not have a county court. The High Court in Scotland is simply a criminal court and it is far from clear in what court the elector or ratepayer is to sue if he wishes to do so in Scotland. Is it the intention of the noble Lord moving this clause that Scottish electors and ratepayers shall have to go to Carlisle to sue in the nearest county court? If so, what is the jurisdiction against the local authority?
Lord Broxbourne: If the noble Lord will allow me, we are here concerned, as my noble friend Lord Campbell of Alloway has said, with Part II of the Bill. The noble Lord will see that that does not apply in Scotland.
Lord Morton of Shuna: With respect, if one looks at Clause 6 of the Bill one sees that it applies to local authorities. Subsection (2) says:
"'Local authority' means—

(a) in England and Wales …

(b) in Scotland, a regional, islands or district council".

It seems to me that Part II applies specifically to Scotland and there is no provision that applies it to a Scottish court.
Lord Elwyn-Jones: I rise briefly to support what has been said by my noble and learned friends and the reservations which were expressed by the noble Lord, Lord Campbell of Alloway. The first difficulty which occurs to me as regards what is proposed is that, as my noble and learned friend Lord Silkin of Dulwich said, it seems to be based on a misconception of the effect of Clause 2, which is to make certain types of publicity ultra vires. The making of such types of publicity would render the transgressor liable to surcharge and all else that follows. Therefore, there is already a public remedy at any rate against transgressions of that kind.
With regard to subsection (1), the difficulty that occurs to me is that no specific relief is claimed that could be achieved by the elector or the ratepayer. I know the noble and learned Lord too well; he would not embark upon what the lawyers call a brutum fulmen— threat with no possible serious consequences lying behind it.
As your Lordships will see, there is no relief sought. An elector or ratepayer may institute proceedings against the relevant authority. What kind of proceedings? To achieve what purpose? We do not know; we are not told, even in the background of the immense knowledge of the noble and learned Lord who rejoices in situations of this kind. So there is a measure to introduce that which has no reality in practice.
A bare declaration would not avail the elector or the ratepayer. I have armed myself with a copy of the Annual Practice and it provides as follows:
"Although the remedy by way of declaration"—
which is what the noble and learned Lord may have had in mind—
"is wide and flexible, yet it will not be granted to a plaintiff whose claim is too indirect and insubstantial and would not give him relief in any real sense—that is to say, relieve him from any liability or disadvantage or difficulty".
It seems to me, with great respect to the noble and

905
learned Lord, that this is a measure or a proposal without teeth and without effect.
Subsection (3) concerns costs. What is proposed goes completely against principles. As the noble and learned Lord knows better than I do, costs should follow the event except in very extraordinary and exceptional circumstances, and in any event the final decision on costs should above all lie upon the trial judges. It is a well-established practice in certain hard cases of the type to which the noble Lord, Lord Mottistone, has referred. I fear it is one of the inescapable consequences of our proceedings which do not provide for any real remedy that would protect the unsuccessful plaintiff. Like the citizen in litigation throughout the country, he must take the risk. However, as it stands, to restrict costs in the way proposed is contrary to principle and would shackle and limit the discretion of the trial judge. Therefore, I join in opposing the proposal.
Lord Elton: As I understand the criteria of right-mindedness as set out so eloquently by my noble friend, I think that Her Majesty's Government are right-minded. At least I can say that my noble friend has struck a resonant chord because we share his anxiety that there should be effective rights of challenge to the decisions of local authorities.
My noble friend Lord Mottistone quoted the Local Government Finance Act 1982 as an example of how that challenge could be arranged in a particular area. I must tell him that I believe that there is no other example of the procedure, which I shall not write out here but which is the procedure followed under that Act and, therefore, I think that the precedent is probably not the best one.
We made plain our concern about the necessity of effective rights of challenge in our evidence to the Widdicombe inquiry which, as regards their main report, had been asked to pay particular attention to the question of proper accountability for decision-making. They made it clear in their interim report at paragraph 243 that one of the questions which they will be considering is the rights of the public to challenge local authorities' activities and decisions. They are looking to ensure:
"that the citizen has prompt, effective, inexpensive and local remedy for dealing with complaints about local authorities".
The committee of inquiry recognised—and I think that we must also recognise—that this is a major issue. It goes well beyond the scope of the present Bill and the relatively narrow range of matters covered in it. It would, in our view, be inappropriate to include the proposed provision for that reason.
As the noble and learned Lord, Lord Silkin of Dulwich, has referred to this matter, I should perhaps refer to the district auditor as a means of redress. The procedure for that type of redress may have disadvantages, but it also has several advantages. It costs the objector nothing which, for obvious reasons, will appeal to my noble friend, and the responsibility to investigate is placed upon the auditor who has wide powers to scrutinise the council's internal documents. It thus enables an effective investigation without the complainant incurring major costs. It also provides
906
protection against weak and vexatious cases being brought to court. Much of that could no doubt be said of the relator procedure which the noble and learned Lord has so clearly set before your Lordships.
My noble friend pointed out that individuals are put off instituting cases of judicial review because of the high costs involved and because they fear that the councils' costs may be awarded against them in the event of their losing the case. Again the Government share these concerns, but again they apply to all cases of public challenge through the courts and not simply to these. That again leads me to suggest that this Bill is not an appropriate vehicle for the solution of this concern.
I should remind your Lordships that my honourable friend the Minister for Local Government summed up the matter in response to similar amendments in another place by saying that we cannot charge into major reforms of the system of redress under civil law without having considered the matter a little more carefully. That is why we have asked the Widdicombe inquiry to consider them; and even if they had already reported, they would not, we think, be appropriate to put into the Bill, for the reasons which I have given. They are issues which must be addressed in the wider context in which Widdicombe is considering them. We look forward to his report which is expected in two or three months, and shall certainly consider very carefully the recommendations made in the report—it will be a report of greater importance in this particular area. I think that we ought to wait until we have the report because it would be unwise now to legislate on a matter which, I agree, deserves the attention of Parliament, even if this were the appropriate vehicle.
Given that my noble friend's concerns and ours go so well beyond the matters that are strictly relevant to this small piece of legislation, I ask him to accept our concern and good intentions and await, if appropriate, a later occasion and a different vehicle.
9 p.m.
Lord Broxbourne: It would be remiss of me not to take up a moment or two of your Lordships' valuable time in expressing my appreciation of the speeches that have ben made and the interesting submissions that have been brought before your Lordships' Committee. It would at the same time be unnatural on my part if I did not express a little regret that noble friends on this Front Bench and noble and learned Lords on that Front Bench have chosen to exclude themselves by their voluntary act from the category of the right-minded, as I defined it in opening! I take this source of satisfaction however, that the Opposition have had to field two noble and learned Lords, two former Attorney-Generals, one a former Lord Chancellor, both formidable forensic opponents of former times. It must be a very weak case indeed that demands such an extravagant deployment of forensic talents.
One can understand that when one analyses the case that the Opposition have sought to put. The noble and learned Lords, particularly the noble and learned Lord, Lord Silkin, said there was no need for this, do we not have two remedies already? What were the remedies he cited? First, the district auditor, merely a surcharge

907
ad hominem, quite outwith the sort of remedies we are looking for here. The second was the relator action; a curious form of action, probably not well known to your Lordships—and why should it be? It is known only, of course, to the two noble and learned Lords opposite because it is initiated by Attorney-Generals. That was their trade, the bringing of relator action; an old-fashioned clumsy device. There is nobody so conservative as Labour Members of Parliament who are entrusted with the office of Attorney-General, but conservative (in spite of a long friendship with both) I am bound to say, not conservatism of the enlightened type of Burke and Disraeli, but merely reaction of which those two great masters cured the Conservative Party. I am disappointed that they should think that those two old-fashioned, inadequate remedies should stand in the face of this enlightened procedure which it is my privilege to commend to the Committee.
Similarly, on the question of costs: "Well", say the noble and learned Lords, "everybody takes a chance with costs and we can trust the judges to get it right". I do, after all. One wins some cases that one ought to lose and loses some cases that one ought to win. But that is taking a very professional view of it. Noble and learned Lords must put themselves in the position of the citizen, who, not for his own interest but in the public interest, is seeking to bring this action. How is he to interpret and prophesy in advance the inscrutable result of the award of costs? Of course, it is a deterrent and a very formidable deterrent indeed. Your Lordships' Committee should do away with it.
I was about to refer to my noble friend who seems to have left us, Lord Campbell of Alloway. I agree with what he said. Part I is not important in this context. We are concerned with Part II. I did not refer to Part I. I did not think it very probable that a citizen would bring an action to enforce a rate. That would seem a paradoxical action for him to entertain.
Finally, the noble and learned Lord, Lord Elwyn-Jones, said that remedies are not prescribed, but they are there: the remedy of declaration, the remedy of injunction and whatever may be necessary in that regard. I am still satisfied by the merits of this matter and its importance. I am fortified by those noble Lords who have supported it. But I do not take any obstinate pride in the draftsmanship, more particularly because it was not originally my new clause. It is not exactly a return brief, but I am devilling it. I have far too much respect for the noble Lord, Lord Chalfont, to say that the maxim les absents ont toujours tort would have any application in this case, or the case of Mahaffy and Dodson in their book on highways when a mistake was pointed out to Mahaffy. He fought his corner long and hard to prove it was right, but finally, having to concede it was wrong, said, "Ah, I remember, that was one of Dodson's passages". I do not. I am sure my noble friends would not take any point on the precision of draftsmanship. I shall not ask the Committee to come to a formal decision on this matter. I thank my noble friend the Minister for such part of his response as was sympathetic, and I invite him respectfully to continue his researches and to gain adoption into the ranks of the wise men. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 [Interpretation and application of Part II]:
Lord Kilmarnock Lord Kilmarnock moved Amendment No. 22:
Page 4, line 14, at beginning insert—
("( ) Nothing in this Act shall prevent the publication of material, or any other action, by a local authority in exercise of its functions under the Local Government (Access to Information) Act 1985.").
The noble Lord said: This amendment concerns the possible conflict between the Bill before your Lordships and the Local Government (Access to Information) Act 1985. I am sure the Committee will be aware that a similar amendment was moved by my noble friend Lord Winstanley during our debates on Clause 2. I venture to raise the matter again only because the wording of this amendment is such that it bites somewhat wider; that is to say, it does not bite only on Clause 2 but on the whole of this section of the Bill.
On the first day of Committee, in response to my noble friend's earlier amendment, the noble Lord, Lord Elton, undertook to bear the matter in mind and to come forward with an amendment at Report. Therefore it would be wrong of me to detain the Committee for long at this stage.
There is, however, one point I should like to raise with the noble Lord, Lord Elton. In col. 581 of Hansard for 18th February he said:
"the present Bill would not, in any case, apply to material made available for public inspection under the Local Government (Access to Information) Act 1985".
He went on to give us a further assurance on that point, lower down in the same column, when he said:
"As I tried to make clear earlier, the agenda and reports and the material as generally described in the Local Government (Access to Information) Act would not be caught by the Bill because they are not published in the sense that the Bill means by published".
So he has given us those assurances that there is no possible conflict between this Bill and that Act. Yet what puzzles me is that he has at the same time generously recognised the general anxiety on the point and told us that he has it in mind to table an amendment on Report to clarify the matter. There seems to me to be a certain incompatability between those two positions: on the one hand the categorical assurance that there is no conflict, and yet an acknowledgement of the anxiety and the intention to bring forward an amendment. That intention to bring forward an amendment would appear to imply that there is at least some basis or foundation for the anxiety that was expressed. That is the only thought that I want to put into the noble Lord's mind at this time. Perhaps he would like to comment on it when he comes to reply.
The only other matter I want to ask him about is this. If he is going to bring forward an amendment on Report, will he use his best endeavours to see that we have it in reasonable time so that we can scrutinise it carefully and decide whether it does or does not satisfy the anxieties that we have on this matter? I should be very grateful to the noble Lord if he would undertake to do that. I beg to move.
Lord Skelmersdale: I think I should make it quite clear that it is certainly no part of the Government's intention that the publicity provisions of the Bill

909
should prevent local authorities from fulfilling their responsibilities under the Local Government (Access to Information) Act 1985. That Act, while it was a Private Member's Bill, was of course fully suported by the Government. It is an important step towards improved accountability in local government, as indeed is Clause 5 of this particular Bill, and we certainly should not wish to undermine the effectiveness of either.
The Committee will remember that my noble friend Lord Elton has already given assurances on this point in the context of Amendment No. 9, which was very similar to this amendment but, as the noble Lord, Lord Kilmarnock, as said, related to Clause 2 only. Perhaps I may remind the Committee that the Government remain firmly of the view that the terms of the definition of publicity given in the Bill mean that it would not apply to material made available for public inspection under the Local Government (Access to Information) Act. My noble friend has, however, undertaken, in the interests of clarity, to table an amendment to make this absolutely clear, and I repeat that undertaking.
I think it would be only fair to say on behalf of my noble friend that he has an extremely good record for putting down in good time amendments to Bills with which he is concerned, and I know that he will undertake to pursue this with his usual zealousness.
Lord Kilmarnock: I did not in the least wish to impugn the good track record of the noble Lord, Lord Elton, on tabling his amendments, but I wished just to make sure that he keeps it up to the mark. Obviously we await the amendment with considerable expectation.
I am not sure that the matter is quite so clear cut as the Government have given us to understand. It seems to me from the debates we had this afternoon on Clause 4 that there certainly is some possiblity that some of the kinds of material contemplated in the Local Government (Access to Information) Act may well be bitten on by the code of practice, and it seems that the relationship of the code of practice under Clause 4 to the general prohibition under Clause 2 is still not entirely clear. Thus it seems to me that there is a grey area there at which we shall have to look very carefully indeed.
However, we are grateful to the Government and to the noble Lord, Lord Skelmersdale. We look forward to the amendment, which we shall study with the greatest care. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness David Baroness David moved Amendment No. 23:
Page 4, line 32, at end insert ("other than a communication comprising only factual information about employees and other agents of the local authority and the facilities made available by them.").
The noble Baroness said: I beg to move Amendment No. 23. I may possibly be covering some of the ground that we covered in the amendment of the noble Lord, Lord Elliott, Amendment No. 20. However, as the Council of Local Education Authorities, which is, as I
910
am sure the Committee knows, the joint council for the Association of County Councils and the Association of Metropolitan Authorities, feels very strongly about this matter, I think I must follow it up and speak to it.
The definition of "publicity" reads as follows in Clause 6(3):
"'Publicity', 'publish' and 'publication' refer to any communication, in whatever form addressed to the public at large or to a section of the public".
CLEA is very worried about this because there are a lot of existing requirements to publish information. For example, under Section 12 of the Education Act 1980 an educational authority must publish all proposals for making a significant change in the character of a county school. An authority wishing to close a school or to move from 11-to 18-schools to a tertiary system could therefore be required by the 1980 Act to publish its proposals for such a change but could be prevented by the Bill, if it is enacted, from explaining its reasons for doing so.
9.15 p.m.
If passed as it stands, this clause would cover a whole host of general communications. It would include for example, a whole range of uncontroversial publicity material: adult education, institutes, college prospectuses, booklets on schools' admissions; arrangements, even a notice board outside a museum or an art gallery stating the opening times; a sign outside a school giving the name of the head teacher; a sign outside a youth centre giving the name of the warden. Not only would local authorities have to have regard to codes of practice about the content and style of such things but, because the defintion of "publicity" is so widely drawn, it would be necessary to account for the cost of these items in a separate account.
Certainly, it would seem that a letter from school heads to parents would have to be costed; as would a speech to parents in the school hall, and even direction signs at public meetings. Other examples which may also have to be costed include rate demands, electoral registration forms, letters to residents about Christmas arrangements for emptying dustbins, rabies notices, fire hydrant plaques, road signs and the painting of vehicles in council livery.
Perhaps the Government would like to comment on these specific items and provide guidance on how one would go about costing the publicity content. If we look at the example of a head teacher proposing to distribute a leaflet to parents and people in the local area, perhaps about a forthcoming jumble sale for the benefit of school funds, it is difficult to define what part of the cost should be recorded as publcity. If posted to parents, the cost of posting the leaflet would presumably have to be accounted for. But how much more? The possibilities are endless.
Do you also include a proportion of the salary of the office worker who types the letter; a proportion of the cost of the typewriter; a proportion of general office costs? This all seems like a recipe for a bureaucratic nightmare and a waste of valuable resources. In particular, the obligation to have to keep a separate account for such items will lead to many time-consuming problems of definition: for example,

911
whether, in any particular case, the commuication is addressed to a section of the public. The purpose of this amendment is to remove factual information provided for public benefit from the definition of "publicity". I beg to move.
Lord Elton: The concern of the noble Baroness goes principally to the definition of "publicity" set out in Clause 6(3), the definition which applies throughout the Bill. It is a wide definition, I agree. It is defined as a,
"communication, in whatever form, addressed to the public at large or to a section of the public".
The breadth of the definition is intentional because it is quite proper to have a wide-ranging definition, for we need to ensure that local authorities are quite clearly prohibited from engaging in party political propaganda at the ratepayers' expense across the wide range of activities that give the scope for it.
We certainly do not want to narrow the definition of "publicity" for Clause 2 or, for that matter, for Clause 4. There are so many ways of communicating political messages to the public that it is essential not to have a definition which leaves the possibility of new forms of propaganda being uncontrolled. But the inclusion of this wide range of publicity in the definition does not prohibit the production of any form of material at all. Authorities that wish to do so, can, in appropriate cases, continue to use modern media techniques—balloons, stickers, badges and so on—if that, in their view, is a reasonable thing to do.
What they may not do is to use these items as a means of transmitting party political publicity. Once a code of practice has been issued under Clause 4 of the Bill, they will of course have to have regard to the relevant provisions. This perhaps goes a little wide of the noble Baroness's concern because, as I understand it, her concern is the other effects of the width or breadth of the definition. That is the amount of work it will generate in the supervisory function, as it were, of Clause 5(1) where the details of expenditure have to be accounted for.
Perhaps I may remind the noble Baroness that we agreed to bring forward an amendment on the lines of that proposed by my noble friend Lord Elliott of Morpeth, to ensure that exclusions can be made from the requirement to account for publicity expenditure in Clause 5. We have accepted that there is a case for excluding marginal expenditure from the requirements of Clause 5, and other examples of material that should properly be excluded may emerge from our discussions and consultations with local government. In fact, I am much obliged to the noble Baroness for having produced a useful list, at which I shall look. I hope she will think it will be sufficient at that stage.
Baroness David: I am very grateful to the Minister for that reply, and of course I was aware of the commitment to produce an amendment on Report. I should like to consult again with my colleagues in the education world but I feel that possibly some satisfactory solution could be arrived at. Hoping for that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 agreed to.
Baroness David Baroness David moved Amendment No. 23A:
After Clause 6, insert the following new clause:
("Review of the operation of Part II.
. Part II of this Act shall expire two years after this Act comes into force, unless its continuation has been approved by a resolution of each House of Parliament.").
The noble Baroness said: This is an amendment which asks that Part II of this Act shall expire two years after the Act comes into force unless its continuation has been approved by a resolution of each House of Parliament. The amendment has been tabled to draw attention to some of the undesirable consequences of the demand for an interim report and, thereby, this Bill; and to suggest a way out.
The main report of the Widdicombe inquiry, covering many more aspects of the conduct of local government than the interim report, is, we heard, expected in a couple of months or so. This amendment ensures that this legislation is updated in the light of the full report. Two years will give the Government ample time to consider the report, to consult on it and to prepare, we hope, fuller and more considered legislation.
The amendment allows the Act to continue in force if approved by both Houses in the light of the main report. We think it was a mistake to call for an interim report. The original reason for the interim report, given by Mr. Patrick Jenkin in his Statement to the House, was—I quote from cols. 957–8 of Hansard for 6th February last year—
"the growing public concern about the use made by some local authorities of their discretionary power to engage in overt political campaigning at public expense."
This almost in the same breath as:
"it is essential that the inquiry should be both impartial and effective.".
The then Secretary of State then went on stating as fact that councils were misusing public funds and spending ratepayers' money on political propaganda.
The next stage was the joint DoE and Scottish and Welsh Offices submission to the committee. This document was polemical in tone and robustly prescriptive in conclusion. Highly contentious and political statements were presented as facts or assumptions.
At times the submission appears to be trying to tell the committee how to do its job. It says:
"controversial facts will doubtless be considered by the committee.".
Phrases like, "the committee of inquiry will wish, as a matter of first priority, to" frequently recur.
Since the publication of the interim report there have been ominous signs that Mr. Kenneth Baker is attempting to pressurise the committee on the main report. In his speech at the Local Government Chronicle dinner, he seemed to be promising legislation to stop council officers standing for election in other authorities, angering, according to press reports, members of the committee. The speech drew a dignified rebuke from Widdicombe, who wrote to several newspapers, saying:
"The views expressed by Mr. Baker are those of the Government and we shall take them into account along with all the other evidence we have received. We shall then reach our own conclusions.".

913
Having failed to jump the committee into accepting their views, the Government have now come up with a Bill which ignores them.
We say that the Government's demand for an interim report puts the cart before the horse. It means that the committee has effectively been forced to consider one aspect of its study before it has gone into the fundamental issue—the purpose of local government, its constitutional position and the changing nature of the political process of which it is a part. By so doing, there is some risk of the main report being prejudiced by the findings of the interim report. More importantly, the enactment of legislation following the interim report which is not based on the recommendations of the committee—and this Bill is not—must prejudice the main report. In effect, the Government have asked the committee to investigate local government and to suggest reforms, and in the middle of the inquiry have come up with their own legal "reforms" which ignore or contradict those recommended by the Government-requested interim report.
The committee members themselves were, it would seem, not altogether happy with the idea of an interim report.
"Many of those who have given evidence have considered it unfortunate that we should have been asked to prepare an Interim Report … We have some sympathy with this view".
That is in paragraph 7. But they were reassured by the Government's statement that,
"The Government accepts, therefore, that the Committee's recommendations in their Interim Report cannot be taken to prejudice their findings and broader judgements reached in the light of their appraisal of all the evidence eventually presented to them".
That is in paragraph 4 of the DoE's submission. At the time, the committee was unaware of the Government's intention to ignore the interim report.
In particular, the Government drew attention to four links in paragraphs 9 to 12. First,
"'political campaigning' needs to be considered alongside wider evidence of the politicalisation of local government".
So the Government's proposals, going well beyond anything in Widdicombe, will prejudice their consideration of the wider issues. Secondly,
"The adequacy of the existing forms of accountability and public challenge",
which many had suggested were able to control councils,
"is equally at issue for the rest of our terms of reference".
The Bill cuts off status quo as an option for the main report. Thirdly,
"publicity needs to be set in the wider context of the proper role of Local Government".
Fourthly, there is a direct link between the interim and main report considerations of Section 137. While the committee had to look at the publicity uses of Section 137 in the interim report,
"the other aspects of Section 137 will be dealt with in our Main Report".
The Government have legislated to implement the report's recommendation on the publicity aspects of Section 137, but in doing so they have twisted the proposal to prevent grants to campaigning or information bodies—an area which Widdicombe may well
914
have wanted to look at in the general context of local authorities' uses of Section 137. The committee did, however, explicitly state that,
"we must reserve the right to return to the subject in our Main Report".
It is to be hoped that the committee will still feel able to do so after the passage of this Bill.
The Government-set timescale was too short. The chairman of the committee was appointed on 6th February 1985; the appointment of the other members was not completed until 16th April 1985; the deadline for evidence was 27th April 1985; and the report, asked for "not later than July", was published on 7th August 1985. The committee itself draws attention to the problems that this schedule imposed. In particular, it prevented the commissioning of formal research on the study of overseas experience. That is in paragraphs 17 and 18.
The Government's justification for urgency does not hold water. They claimed it was necessary because of "growing public concern" on the issue. The committee was unable to commission its own opinion poll to test this—there was not time—but referred to three others. One, carried out by NOP for the Right-wing pressure group, Efficiency in Local Government, had an 88 per cent. "disapproval" rating—hardly surprising when the sample was asked what it thought of local councils spending large sums of money on political advertising using the rates! There are, however, two impartially phrased polls for the GLC (Harris) and the Derbyshire County Council (Mori). Both asked whether particular campaigns were approved of. The result for the GLC's anti-abolition campaign was "approve", 51 per cent.; "disapprove" 29 per cent. There has also been a Mori poll within the last few days, but I have mislaid the results for the moment.
But it is not only because of waiting for the main report that we propose this amendment. Part II of the Bill is the particularly controversial part, and that has upset the local authority associations and the voluntary organisations. I hope that our amendment will give the public and the associations a chance to see how this Bill is working and that if in the course of two years it is causing a lot of difficulties and is creating a lot of trouble for local authorities and councillors the Government will consider withdrawing Part II and, if they wish to continue with it, putting it before both Houses of Parliament at that time. I beg to move.
9. 30 p.m.
Lord Elton: My Lords, it really is fascinating to notice the change in tone and the assessment which noble Lords and Baronesses opposite have of the value, of the worth and of the excellence of the Widdicombe Report, according to whether they are speaking to an amendment which is founded on the Widdicombe Report's recommendations or speaking to an amendment which is attacking the Government's proposals. I had hitherto supposed that the work of Widdicombe and his committee had been something which filled the Opposition with admiration and that they wished to repose a lot of their

915
arguments on the arguments adduced by the committee of inquiry. So I am surprised to hear that it is also worthless, tendentious and unstable, and I am relieved, on the other hand, that the purpose of the amendment is to enable the noble Baroness to launch these attacks. Had it been a more serious purpose I should have to have told her that it is technically defective since different parts of the Bill would come into force at different times and that she would have to redraw it anyway.
I dare say that the view of the noble Baroness of the whole operation and of the attitude of Her Majesty's Government to the Widdicombe Report and our intentions towards the Widdicombe Committee rested in part on the Local Government Chronicle dinner speech to which she referred with some animation. I have to tell the noble Baroness that it was in fact misquoted and misinterpreted by the press, and I shall be very happy to pass her a transcript of what my right honourable friend actually said when she may perhaps view him in a different light. I think perhaps that that is as much as I should say on that issue.
I accept that in Part II we are legislating in a relatively new area but I do not accept this means that the Bill should be subject to the exceptional review procedure which is normally reserved for emergency powers legislation or the Prevention of Terrorism Act. The inquiry recommended a clear statutory prohibition on party political publicity. The inquiry did not mean it to be a temporary measure; indeed, it saw the problem as one that was likely to grow rather than to diminish. There can certainly be no justification for requiring an account to be kept for a limited period; neither would it be a very good idea to abandon principles of good practice for local authorities' publicity decisions or to reinstate the current scope of Section 142 which has in practice proved so inappropriate. Clearly if issues of substance arose, or if the Widdicombe Inquiry made some further recommendation that we wished to adopt and your Lordships supported us in that wish, we should have to consider revising the Bill's provisions. But I do not at the moment see any reason to expect that that will happen.
The noble Baroness said that we ought really to have waited for the main report; but that is like telling somebody with a thumping headache not to take an aspirin because he may have 'flu and that some better remedy will be invented next year. It seems to me that what we have done is a response to the Widdicombe interim report, which we have not, as I thought I heard the noble Baroness say in one aside, ignored. We have not ignored it; we have acted upon it. That is what this Bill is. The noble Baroness will not be satisfied by what I have said. She very rarely is, to give her credit. But on this occasion I have to say that I do not think that what she is proposing is suitable. I am glad that it was chiefly the pretext for the gallop around the course that we had on the unsuitability of our approach to Widdicombe.
If the noble Baroness feels after two years that the Bill is wrong-headed then I suggest that she comes to
916
your Lordships' House and suggests that it be repealed or amended. However, I do not believe that the House should be forced to go through the whole Bill, and its three totally separate parts, again, or even to analyse the distinct parts of Part II as a separate exercise, unless that proves necessary.
Lord Underhill: My noble friend Lady David is thoroughly able to defend herself but I wish to comment on the Minister's remarks concerning her alleged comments about Widdicombe. To my knowledge my noble friend was not criticising Widdicombe. If anything, she was criticising the Government's interpretation of Widdicombe and the fact that they have turned Widdicombe completely on its head, as so many noble Lords observed on Second Reading.
The amendment now before the Committee deals only with Part II of the Bill. We recognise that there is a clause in the Bill that defines the dates on which the various sections shall come into operation. We are dealing with Part II—except of course subsection (5), which will come into effect on a date that the Secretary of State may fix by statutory instrument.
My noble friend has outlined various reasons why the Committee ought to agree to her amendment, irrespective of the fact that the main report is yet to come, and bearing in mind that the main report itself will be of major importance as the Minister said, and will require some time for consideration. I hope that the Government, even if they reject this amendment, will monitor the effect that this Bill will have upon local government information services and upon publicity services. I hope also that the Government and noble Lords will monitor carefully the effect that the Bill will have on the relationship between central government and local government, which year by year gets worse and worse. There is a thoroughly good justification for my noble friend's amendment but I believe it is her wish that the amendment be withdrawn in the light of what has been said; but perhaps I had better let her say that.
Baroness David: I believe that the Minister misunderstood what I was saying. Certainly I was not attacking Widdicombe. I was attacking the Government's use of Widdicombe.
Lord Elton: As I understood the noble Baroness, she was attacking my right honourable friend the Secretary of State and the Government for the timing and was saying that Widdicombe did not have remotely enough time to get out a sensible report. I understood her to say that it had all been done in great haste and that the opinion polls proved that to be the case. I truncate the noble Baroness's argument somewhat. However, if she is saying that it is an excellent report, then that whch my right honourable friend set by way of a timetable cannot have been such a bad thing, because we got a good report out of it.
Baroness David: I beleive that what I was saying was that the Widdicombe Committee was hurried into producing the interim report for the benefit of the Government, who then ignored a great deal of what was said in that interim report. There have been a certain number of misunderstandings, but I shall read what has been said by the Minister. I hope that he will also read what I have said and will then understand it.
We are very unhappy about Part II of the Bill, and that has been made very clear. We have managed to
918
improve it in Committee but we may need, as the Minister has said, to consider it again once we have seen the working of the Act. Indeed, the local authority associations themselves will no doubt be making their comments constantly. If we need to return to this matter later, then no doubt we shall do so. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 7 to 9 agreed to.
Lord Kilmarnock Lord Kilmarnock moved Amendment No. 24:
After Clause 9, insert the following new clause:
("Duty of local authority to comply with report by Local Government Commissioner in cases of maladministration.
. A local authority shall have a general duty to comply with a report of the relevant Local Government Commissioner in respect of any acts of maladministration leading to injustice by that authority. A local authority shall within six months of a formal written notification of findings against them by the Local Government Commissioner inform the Local Government Commissioner and the complainant of the remedy proposed and any administrative or policy changes being carried out to prevent a continuing or recurring injustice.").
The noble Lord said: This amendment seeks to introduce a different type of material into the Bill. I should say that I am proposing this amendment, very inadequately, in substitution for my noble friend Lord Winstanley who, unfortunately, has been taken ill with 'flu. I promised him that I would do my best to explain his case.
With Amendment No. 24 I should also speak to Amendment No. 27, which is required to bring the main amendment within the Long Title of the Bill. I make no apology for raising a new issue. The Bill is called the Local Government Bill. It covers a number of rather disparate items, including the item on the transfer of mortgages, and it would seem to me to be a perfectly suitable vehicle for legislation along the lines proposed in this amendment.
I come to the amendment and I do not want to read it out in extenso; but I think the description in the margin is adequate. It refers to the,
"Duty of local authority to comply with report by Local Government Commissioner in cases of maladministration."
Maladministration is specified in the amendment as,
"maladministration leading to injustice by that authority."
What are we talking about when we refer to maladministration leading to injustice? There are perhaps three or four main areas. For example, in the purchase and sale of land a council can use its position as a public authority in an oppressive way by unreasonably withholding planning permission and thus causing the sale price of a piece of land to be reduced. In the provision of various services—for example housing—an arbitrary method of housing allocation may well unfairly cause hardship. Indeed, unacceptable delays in repairs may cause injustice. In schools, too, many of the cases brought before the ombudsman centre on an authority allocating a place in a school on grounds of administrative expediency rather than on educational suitability. There are a number of other areas in which a local authority may commit an injustice, such as matters concerned with roads, the social services or the environment.
What is the situation at the moment? In August 1984 the Commission for Local Administration in England sent a memorandum to the Secretary of State for the Environment precisely on this subject. The memorandum was concerned with the number of occasions when local authorities have not provided a satisfactory remedy following a finding by the local ombudsman that injustice has been caused through maladministration by the authority. This has been reviewed by the Select Committee of another place which felt that,
920
"Such an extent of defiance by local authorities risked bringing the ombudsman system into disrepute."
In terms of volume we are not talking of an enormous number of cases, and the Commission for Local Administration states:
"Put simply, about 6.25 per cent. of those found by the local ombudsman to have suffered injustice through maladministration have not received a satisfactory remedy. Perhaps more significantly 19 per cent. of local authorities receiving critical reports have at one time or another not provided a remedy even after the local ombudsman has issued a further report on the complaint".
That 6 per cent. may not be thought to be a very dramatic figure but the situation is bad of course because injustice should always be remedied. If there are 94 per cent. of cases which are adequately and successfully dealt with, that is no reason why the remaining 6 per cent. should not be dealt with in the same way.
9.45 p.m.
The other thing which bears on the general credibility of the Ombudsman system is that of course the publicity given to failures always receives more attention than that given to the successes of the system, and it tends to reinforce the belief of the public that there is no point in using the Ombudsman system because it has no teeth. Of course this is not entirely true, but that is a perception which may well arise from the record of cases not successfully settled.
The Commission for Local Administration in England has also produced a report in which it names 72 local authorities which between 1974, when the English local Ombudsman started work, and the 30th January 1986 failed to provide a remedy satisfactory to the Ombudsman on an occasion when, following investigation of a complaint, the Ombudsman issued a report finding that there had been injustice caused by maladministration. In each case the failure was in spite of the issue of a further report by the local Ombudsman following the authority's failure to respond satisfactorily to the first report. These 72 authorities represent 19.5 per cent. of all the authorities in England against which an adverse finding at some time or other has been made by a local Ombudsman.
I do not wish to be invidious or to cite the names of any of these authorities, but I have them and they are of course in the Government's possession. Also, there have been 16 cases outstanding since at least the 31st March, some of which may also prove to be cases where no remedy will be provided. In each year there were some authorities who declined to provide a satisfactory remedy, including some who did so for the first time. In 1984–85 a further five authorities joined the list, despite having provided remedies previously, and there may be more to follow from the outstanding cases. The point is that this could be seen as a relatively small failure of the system, but it appears to be persistent. The rate of improvement in the last five years over the previous five years has not been spectacular, and there always seems to be this small percentage of cases where the authority will not follow up the Ombudsman's ruling and give a remedy where a remedy is due.
The amendment seeks to use this Bill as a vehicle to impose an obligation on the authority to have:
"a general duty to comply with a report of the relevant Local Government Commissioner in respect of any acts of maladministration leading to injustice by that authority. A local authority shall within six months of a formal written notification of findings against them by the Local Government Commissioner inform the Local Government Commissioner and the complainant of the remedy proposed and any administrative or policy changes being carried out to prevent a continuing or recurring injustice".
I am pretty certain that in reply the noble Lord will tell me that this is neither the right Bill nor the right place to suggest that this worthy measure should be included. The Government in fact have been stalling on this matter for some time. If this is not the right vehicle, we certainly have to find a vehicle and find one fairly soon. Of course, I am aware that the matter is still under consideration by the relevant committee of another place. I am also aware that it is within the remit of the Widdicombe Report which we seem to have spent so much time talking about during this Committee stage; that is to say, part of Widdicombe 2. It therefore seems, I accept, that we have missed the bus on this Bill, and I think that that is rather a pity. The rulings of the Ombudsman are clear, and there was adequate material available, I think, to have included a clause in the Bill on the subject. However, I think that we have to be realistic and to accept that we probably have missed the bus on the Bill.
But I would like to ask the noble Lord, if that is his view of the matter, what he has in mind for bringing the measure into statute once the Select Committee has finished its report and the Widdicombe Committee has also produced the second part of its report. Do the Government take this seriously? Will they undertake to legislate as soon as possible? If this is not the right vehicle, have they any other in mind? The matter has been pending for quite a long time. Those of us who are interested in this matter—and I think that we must all be interested in any question of injustice—would want to hear from the Government what their plans are to remedy these shortcomings in the implementation by local authorities of the recommendations of the Ombudsman. I beg to move.
Baroness Faithfull: I speak on behalf of my noble friend Lord Sandford who I am afraid also is ill today. I should like, briefly, to ask the noble Lord, Lord Kilmarnock, three questions. I do not understand, first, the phrase "have a general duty to comply". It seems to be very wide and imprecise. Secondly, the new clause states:
"A local authority shall within six months of a formal written notification of findings against them",
etc. In my experience local authorities put right complaints and recommendations made to them by the local government commissioners. They usually do so quickly. If it has to be within six months, they will hold things up for six months and say that they do not have to do it until then. I should much prefer a period of three months if we are to retain that provision.
Thirdly, there is the assumption that the local government commissioners are always right. We are fortunate in our local government commissioner, but the very best of us can sometimes be wrong. There is no appeal provision in the amendment.
922
I also have the figures. Adverse reports in the past five years have numbered 859, of which 92 per cent., by my figures, have been put right by the local authorities, leaving only 5 per cent. where no remedy has been provided and 2 per cent. not yet decided, but that is in a way irrelevant. While I understand the feelings and the thought behind the amendment, I do not hold with it as it stands.
Baroness David: We too would like to support the idea behind the amendment. There probably is in a great many cases some duty to provide a remedy, but is this the right moment? The Select Committee on the Parliamentary Commissioner for Administration is currently considering the question of remedies for the complainant when a local authority has failed to provide appropriate redress and maladministration has been found against it. It would seem sensible to await that report, and so this is not quite the right moment to take action.
Lord Kilmarnock: With permission, I shall try to answer the noble Baroness, Lady Faithfull. We are not wedded word by word to the amendment as it stands. Objection has been raised from other quarters which I also respect, about the six-month period specified. Certainly we would not go to the stake for that. It would be a matter for discussion. Also, the figures that the noble Baroness quoted are exactly the same as those that I have mentioned. There is no dispute between us on that. What we are talking about is perfecting the system or bringing it up to its maximum perfectibility given its very successful track record in the majority of cases. I certainly do not dispute the figures with the noble Baroness. As for the wording of the clause, that is something for discussion if the Government will eventually take it up here or in some other vehicle.
Lord Elton: Let me start by saying that the Government do take this issue seriously. That is the direct question that I was asked by the noble Lord, Lord Kilmarnock. Secondly, as he recognises, the amendment goes far wide of the Bill. That is why he had to put down a second amendment to increase the scope of the Bill so that it could embrace the principle that he wanted to amend the Bill to embrace.
In the autumn of 1984 the Commissioner for Local Administration in England, the local ombudsman, made formal recommendations to my right honourable friend the Secretary of State for the Environment. Justifiable concern was expressed that in 6 per cent. of cases where injustice was found, the authority complained against failed to remedy the injustice. The local ombudsman recommended that unless matters improved on a voluntary basis, legislation should be considered. The response of the local authority associations for England and Wales to this was positive. They wrote to each local authority urging speedy and total compliance with all the findings of the local ombudsman.
It was against that background that my right honourable friend the Secretary of State announced the Government's position in September last year. He

923
shared the local ombudsman's concern at what was happening. He acknowledged that although non-compliance is relatively rare, each occurrence compounded the original injustice to the individual citizen concerned and that the resultant publicity might undermine public confidence both in the office of local ombudsman and in local government as a whole. He concluded therefore that steps should be taken to secure greater compliance with the commission's findings.
In the first instance, the Government welcomed the action of the local authority associations in writing to their members. It was right that local government should be given the opportunity to put its own house in order. The voluntary route would, in our view, be preferable to the compulsory one in this case if it can secure the same objective. We are therefore watching closely the effects of this voluntary initiative. We have undertaken to discuss its achievements with the local ombudsman and local authority representatives. It will then be possible to decide in consultation whether further steps need to be taken.
Turning to the clause itself, I must say that its potential effect in its present form is worrying. It would, as my noble friend Lady Faithfull has pointed out, on behalf of my noble and absent friend Lord Sandford, to the noble Lord, Lord Kilmarnock, who answers on behalf of the noble and absent Lord, Lord Winstanley, be particularly harsh for local authorities to have the findings of the local ombudsman imposed on them without the right of appeal to another body. It assumes total rectitude and absolute unshakeable infallibility. It would, I fear, represent also a fundamental change in the role of the local ombudsman. It would give him executive powers in addition to his investigatory powers. That is another fundamental change. Authorities might come to see the ombudsman in fact as both counsel for the prosecution and judge, whereas he should be seen as neither. I am not expressing my own fear or indeed that of the Government in isolation. Independent observers have made these same points. Most important perhaps, the local ombudsman for England has taken the same view.
10 p.m.
May I conclude therefore by assuring the noble Lord that we understand and share the anxieties that underlie the amendment? There is a problem with some local authorities defying the local ombudsman. That problem must be tackled. However, a Select Committee of another place started taking evidence on this mattter in 1984 and is due to report in three months' time. The main report of the Widdicombe Inquiry is also expected shortly and, as they made clear in their interim report, and as I have referred earlier, one of the questions they will have to consider is the rights of the public to challenge local authority activities and decisions.
I am sure that these two reports, together with our own assessment of local government's voluntary efforts, will provide the best possible basis for deciding what should be done next. I do not think that we have
924
missed the bus; I think that this was the wrong bus. We want the next bus.
I am grateful to the noble Lord therefore for bringing this matter before the Committee. The noble Lord says that this may be a small failure of the system. Nonetheless, it is an important matter for all that. I hope that in the light of what I have said the noble Lord will withdraw his amendment now and perhaps give us the benefit of his views, and those of his party, when the two reports of which I have spoken and our own assessment of the developments resulting from the local authorities' voluntary initiative are available for discussion.
Lord Kilmarnock: I am most grateful to the noble Lord, Lord Elton, for his reply. I have accepted the imperfections of the clause as drafted. I take the point that there is no right of appeal, which seems to be wrong. I am also fully aware that the Select Committee of another place is due to report shortly and that Widdicombe is also investigating the whole question of the right of challenge of the citizen. Obviously we shall look forward with interest to both of those reports. However, if we see no action in the offing, we shall be inclined to come back to this in some form or another.
I am slightly encouraged by the noble Lord's continuance of the bus analogy. The noble Lord said that although this was not the right bus he sees that there is another bus probably coming along. We shall certainly be there in the bus queue waiting for it, if we do not see that the requisite action is coming forward. For the moment, I certainly do not intend to press this amendment.
Lord Elton: I forgot one important matter. I forgot to say—and I am sure that your Lordships will join me—that I hope his noble friend and my noble friend both make a speedy recovery.
Lord Kilmarnock: I am most grateful to the noble Lord. I shall convey that to my noble friend Lord Winstanley. The noble Lord will no doubt convey the same sentiment to his noble friend Lord Sandford.
I am encouraged by the noble Lord in his implication that there is not only one bus suitable for this but that there may be another coming along. We shall certainly be on the look-out for it. I certainly do not intend to press this matter. I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Elliott of Morpeth Lord Elliott of Morpeth moved Amendment No. 25:
Before Clause 10, insert the following new clause:
("Duty of local authorities to publish annual reports of road safety measures.
.—(1) Section 38(2A) of the Road Traffic Act 1972 (as inserted by section 8(1) of the Road Traffic Act 1974) (powers of the Secretary of State and local authorities as to giving road safety information and training) shall be amended as follows.
(2) After paragraph (c) insert—
"(d) shall publish an annual report to the Secretary of State on the measures undertaken to promote road safety.".")
The noble Lord said: In the unavoidable absence of my noble friend Lord Nugent, I am asked to move the amendment in his name.
The Road Traffic Acts 1972 and 1974 required local authorities for the very first time to prepare and carry out a programme of measures designed to improve road safety. This existing legislation nevertheless means that although local authorities carry out studies of accidents in their areas—and they are further required to take measures which the studies and the evidence from them suggest would be helpful in preventing further accidents—at the present time they are not obliged to publish the reports on their road safety programmes. These reports include information and publicity campaigns and the improvement and required maintenance alterations of roads for which they are responsible as a highway authority. Some excellent reports are produced. It is estimated that some 50 per cent. of local authorities who undertake these studies produce reports which have proved to be of general benefit.
The new clause in the name of my noble friend is aimed at making it obligatory for all authorities to produce an annual report. Highway authorities would benefit enormously by a full exchange of experience, information and ideas. A number of authorities have quite recently adopted wide-ranging and imaginative road safety schemes, and a national perspective could be achieved on the types of measures which some authorities have really found to be most effective.
We were reminded earlier today that this is European Road Safety Year. Therefore, I suggest on behalf of my noble friend that the addition of this clause to the Bill in this year would represent a substantial step towards reducing the constant tragedies which daily arise from accidents on our roads.
Finally, it may interest your Lordships to know that the Association of County Councils has informed my noble friend of their agreement in principle with his new clause. I beg to move.
Lord Underhill: I should like very briefly to support what has been said by the noble Lord, Lord Elliott of Morpeth. I am sorry that his noble friend Lord Nugent cannot be here. However, I think that all noble Lords have respect for what the noble Lord, Lord Nugent, has said on various occasions on the question of road safety, and I hope that we shall give consideration to this amendment.
I am certain that the noble Lord the Minister will have some useful matters to tell us. He may say that this Bill is not the appropriate vehicle for such an amendment, but I hope that he will go beyond that and give us the Government's views on the matter.
As the noble Lord, Lord Elliott, has said, this is European Road Safety Year. Your Lordships have shown by Questions over the last two or three weeks the concern which is felt on the matter of road safety. Apart from the fact that, as the noble Lord says, the amendment has the support of the Association of County Councils, it is also fully supported and approved by the Parliamentary Advisory Committee for Transport Safety. Therefore, it is an important amendment, and I am certain that the publication of these reports would, as the noble Lord says, not only provide useful information for the department and the
926
Ministers but also provide for the exchange of information between authorities.
I shall be very interested to learn the Government's views here. If the Bill is not the right medium for this provision we would nevertheless like to know the Government's views on this particular amendment.
Lord Skelmersdale: I must start by saying that I am attracted in principle to my noble friend's delegated (if I may put it that way) argument on road safety. His intention is to make local authorities publish year-by-year the measures they take to fulfil their statutory responsibility for road safety under the 1972 and 1974 Road Traffic Acts. The Government are well aware of the important role which local authorities have to play in road safety, and recognise that, while some authorities have a first-class record, others have a great deal to learn.
Anything that would improve road safety, especially where the care and maintenance of roads is concerned, must be a good thing even in a year that is not designated as road safety year. The question is whether a statutory requirement to publish an annual report would improve matters. My noble friend suggests that it would do so. The Government think that it could help, but would not want to introduce such a measure without the full support of the local authorities.
Annual reports would inevitably impose some financial burden on local authorities. There would need to be discussion about what the reports will cover; and there are implications for the existing information and grant systems which need to be considered. Such issues would require extensive prior consultation with local authorities, among others. No such consultation has, to date, taken place. Nor, with the abolition of the metropolitan counties imminent and the organisational re-arrangements which will follow, is it a suitable time to be considering such consultation.
Nevertheless, I most certainly do not want to reject the idea completely. The Committee will be aware that my colleagues in the Department of Transport are currently reviewing future road safety policy. I understand that that department is considering a number of issues which bear on the most effective arrangements for improving road safety policy and performance. I shall make sure that the department takes on board the thinking behind the amendment.
However, for the reasons I have stated, I do not think that now is the right time, or (if I may almost quote the noble Lord, Lord Underhill) that this Bill is an appropriate vehicle for this significant change to local authorities' formal responsibilities. I hope that my noble friend will take the point and will seek to withdraw his amendment.
Lord Elliott of Morpeth: I am grateful to the noble Lord, Lord Underhill, for his support of the proposed amendment. I am grateful also to my noble friend for the way in which he has responded to it. I take the point that this may not be the right moment, but it is encouraging to know that the principle is accepted.
In the circumstances, on behalf of my noble friend Lord Nugent of Guildford, I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
Clause 10 [Allowances payable to members of new authorities.]:
On Question, Whether Clause 10 shall stand part of the Bill?
Lord Elton: I do not wish to do more than move the Motion formally, but I should like to take the opportunity to give notice, which is normal, of an amendment which the Government may wish to table at Report.
Under existing statute, owing to a technical defect in the drafting of the Local Government Act 1985 and the way it works with the Local Government Act 1972, it could happen that in a local election year there could be a period of about a month during which the London fire and civil defence authority and other joint authorities, though not ILEA, were without elected members. The legal position is the same in the metropolitan counties, but the difficulty is less because only a third of the district councillors retire in any one year. The Government are therefore consulting urgently the local authority associations on what, if anything, needs to be done about this. My purpose now is merely to alert your Lordships to the possibility of a Government amendment at Report stage.
I should also apologise for the fact that we agreed so quickly and the Committee were so kind in its agreement to, among others, Clause 7, that I did not at that stage tell the Committee that we intend to make a small amendment to subsection (4) of that clause which will add to the protection for borrowers. It is technical, but I accept that I should have made it in the context of the clause. It relates to subsection (4) which provides a procedure for validating transfers of mortgages. If a local authority inadvertently overlooks a borrower's withdrawal of consent to a transfer, the subsection provides that the transfer can none the less be valid.
I shall not go further than to draw the Committee's attention to the area of our concern and to say that there are two even more minor changes to subsection (4), to require that the certification referred to in that subsection will form part of the transfer agreement, and to make provision for consents to which conditions have been attached. These are really very technical matters, but I have always tried to act with extreme propriety on these occasions so that I can leap upon noble Lords who risk to demean themselves in a more flagrant manner. I am sorry that I have not quite done so because I missed the opportunity on clause stand part. I beg to move.
Clause 10 agreed to.
Remaining clause agreed to.
[Amendments Nos. 26 and 27 not moved.]
House resumed: Bill reported with the amendments.
House adjourned at fourteen minutes past ten o'clock.